author: PER CURIAM.

text:
    Alexander Paul JADICK, as administrator ad litem of the estate of Val Jadick, deceased v. NATIONWIDE PROPERTY & CASUALTY INSURANCE COMPANY.
    2100432.
    Court of Civil Appeals of Alabama.
    Dec. 16, 2011.
    Rehearing Denied April 6, 2012.
    Certiorari Denied June 15, 2012 Alabama Supreme Court 1110927.

      Michael A. Wing, Mobile, for appellant.
    Kori L. Clement and Stephanie White Schmidt of Hare, Clement & Duck, P.C., Birmingham, for appellee.
   PER CURIAM.

Alexander Paul Jadick, as administrator ad litem of the estate of Val Jadick (“Jad-ick”), deceased, appeals from a summary judgment of the Mobile Circuit Court in favor of Nationwide Property & Casualty Insurance Co. (“Nationwide”).

In June 2009, Jadick initiated a civil action in the trial court, alleging that Nationwide had breached an insurance policy it had issued to Jadick by failing to comply with an appraisal clause pertaining to disputes between the parties as to the amount of a particular loss and that it had exercised bad faith in doing so. In November 2009, Jadick filed a motion in which he requested an appraisal and the appointment of an umpire. In January 2010, Jad-ick filed a motion to recuse. Both motions were denied. In April 2010, Jadick filed a motion to reconsider, seeking relief from the rulings on both his recusal and appraisal motions, which motion was thereafter denied. Jadick then filed a petition for writ of mandamus regarding the recu-sal issue; this court dismissed that petition on the basis that it was untimely. Ex parte Jadick (No. 2090892).

Nationwide filed a motion for a summary judgment in July 2010, to which Jad-ick responded in opposition. Nationwide thereafter filed a motion to strike an affidavit Jadick had submitted in support of his response in opposition, arguing that it was based on hearsay; that motion was granted. The trial court held a hearing in December 2010, and, at that time, Jadick filed a supplemental response in opposition to the motion for a summary judgment and attached another affidavit. In response, Nationwide filed a motion to strike the second affidavit, arguing that the affidavit was also based on hearsay. Nationwide further argued that Jadick’s supplemental response should be struck from the record because Jadick had failed to file the supplemental response at least two days before the hearing. See Rule 56(c)(2), Ala. R. Civ. P. The trial court entered a summary judgment in Nationwide’s favor in December 2010, contemporaneously granting Nationwide’s second motion to strike, prompting Jadick’s appeal. Because Jad-ick died during the pendency of this appeal, Alexander Paul Jadick, the administrator ad litem of Jadick’s estate (“the administrator”), has been substituted as a party.

The undisputed facts reveal that Jadick suffered a fire loss at his residence on August 4, 2007. He reported the loss to Nationwide the following day. The present litigation arose out of the events that thereafter transpired. On August 7, 2007, Nationwide conducted a routine inspection of the damaged property; on August 22, 2007, Nationwide provided Jadick with an estimate of the amount of damage sustained by the residence. The cover page for the estimate stated, in pertinent part, as follows:

“If any hidden, or additional damaged items, and/or damaged items are discovered, please contact me or have your contractor or vendor contact me immediately. Coverage for the hidden or additional damages and/or damaged items, would need to be determined, and may require an inspection/re-inspection, before any supplemental payment would be authorized. Please do not destroy, or discard any of the hidden, or additional damages, and/or damaged items, until we have had an opportunity to review the hidden or additional damages and/or damaged items, and have reached an agreement with you on any supplemental cost.”

(Emphasis added.)

On August 28, 2007, Nationwide issued a payment in the amount of $63,072.23, consistent with the estimate, to Jadick (and the lienholder on the house) to cover the loss; the letter attached to that payment indicated that payment for overhead and profit would be paid once Jadick hired a qualified general contractor to repair the residence and stated that, with payment for overhead and profit, Jadick would receive a total of approximately $76,004.59.

In October 2007, Jadick entered into a contract with Robert Mullen Builders, Inc. (“Mullen Builders”), to make the needed repairs for $78,000. In December 2007, Nationwide sent a letter to Jadick telling him to contact its employee immediately if any hidden or additional costs were discovered during the repair process. The language of that letter included the language that had been included in the letter attached to the first payment (quoted above). In January 2008, Mullen Builders sent a letter to Jadick demanding to be paid in full at that time, including payment of an additional $1,448.23 to cover county-inspection fees. After receiving the bill from Jadick, Nationwide issued payment in the amounts requested, thereby paying off the remaining balance owed to Mullen Builders.

The appraisal clause of Jadick’s insurance policy with Nationwide stated:

“If you and we fail to agree on the amount of loss, either can demand that the amount be set by appraisal. If either makes a written demand for appraisal, each will select a competent, independent appraiser and notify the other of the appraiser’s identity within twenty days of the receipt of the written demand. The two appraisers will then select a competent, impartial umpire. If the two appraisers cannot agree on an umpire within 15 days, you or we can ask a judge of a court of record in the county where the resident premises is located to select a competent, impartial umpire.”

In April 2009, 15 months after Mullen Builders had completed its repairs and had been paid in full, Jadick obtained an estimate from Hargrove & Company, LLC (“Hargrove”), regarding damage caused by the fire, which estimate was higher than the first estimate Nationwide had submitted to Jadick. Jadick wrote Nationwide a letter demanding that it conduct an appraisal and attached the estimate obtained from Hargrove to that letter. The record shows that that demand letter was the first time Jadick had informed Nationwide that he did not agree with the original estimate and with the payment paid to Mullen Builders. Nationwide refused to conduct an appraisal, positing that Jadick had not taken the necessary steps to invoke the appraisal clause in the policy, including demonstrating that a disagreement existed between the parties as to the first estimate.

After Nationwide denied Jadick’s request that it conduct an appraisal, Jadick commenced the underlying action. After Jadick filed his motion in the trial court seeking to invoke the appraisal clause and to appoint an umpire, Nationwide filed a response in opposition to Jadick’s motion, asserting 1) that it had told and encouraged Jadick at least twice to notify it immediately if any hidden or additional defects became apparent warranting increased repair costs and 2) that Jadick had not only failed to provide, but had also conceded that he did not have, a basis upon which to disagree with the original estimate and to invoke the appraisal clause. In support of its assertion that Jadick had no basis on which to disagree with the original estimate, Nationwide referenced Jadick’s response to a discovery request; in response to Nationwide’s request that Jadick “state in detail all damages” that he was claiming and that he “produce any and all documents which substantiate such damages,” Jadick had conceded that he “need[ed] the appraisal to occur to get the accurate figures of damages.”

As we have noted, after the trial court denied Jadick’s motion to invoke the appraisal clause and to appoint an umpire and his motion for recusal, Nationwide sought a summary judgment in its favor. Responding in opposition, Jadick argued that the amount Nationwide had agreed to pay pursuant to the first estimate had prohibited Mullen Builders from making some repairs and using some materials. In support of that argument, Jadick attached an affidavit of Robert Mullen (“Mullen”), the proprietor of Mullen Builders, in which he stated that he had replaced only a section of the roof instead of replacing the entire roof; that he had installed carpet instead of repairing the hardwood floors that had existed in the house before the fire; and that, “based on the insurance company’s disallowance of certain items, Jadick was forced to decide how best to allocate the funds that were allowed by the insurance company.” The record reveals no evidence of a disagreement or of any coverage issues that had arisen out of the first estimate, nor does it reveal that Nationwide refused to pay for anything before Mullen Builders commenced repairing the property. Nationwide filed a motion to strike Mullen’s affidavit, and that motion was granted. On the day of the hearing set for arguments on Nationwide’s summary-judgment motion, Jadick filed a supplemental response in opposition to the summary-judgment motion and attached a second affidavit from Mullen. Nationwide argued that that supplemental response and Mullen’s affidavit should be struck from the record because Mullen’s statements were hearsay and because the supplemental response was untimely because it was filed on the day of the hearing. See Rule 56(c)(2), Ala. R. Civ. P. In entering the summary judgment in favor of Nationwide, the trial court also granted Nationwide’s second motion to strike.

On appeal, the administrator argues 1) that the trial court erred in denying the motion to recuse; 2) that the trial court erred in denying the motion to invoke the appraisal clause and to appoint an umpire and in concluding that Nationwide did not breach its policy as a matter of law; and 3) that the trial court erred in striking the affidavit of Mullen attached to the supplemental response to Nationwide’s summary-judgment motion.

We begin by addressing the motion to recuse. Nationwide argues that the motion to recuse was properly denied, and it asserts that the trial court’s decision cannot properly be reviewed on the merits because of our previous dismissal of Jad-ick’s petition for writ of mandamus. Although not explicitly stated, Nationwide’s argument appears to be based on the doctrine of res judicata. However, “[a]n issue or action is barred by the doctrine of res judicata when a court of competent jurisdiction has rendered a judgment on the merits in an earlier action that involved substantially identical parties and that presented the same cause of action.” City of Dothan Pers. Bd. v. DeVane, 860 So.2d 881, 883 (Ala.Civ.App.2002) (emphasis added; citing Parmater v. Amcord, Inc., 699 So.2d 1238, 1240 (Ala.1997)). Specifically, Alabama courts have recognized that

“ ‘the denial [of a petition for a writ of mandamus] does not operate as a binding decision on the merits.’ R.E. Grills, Inc. v. Davison, 641 So.2d 225, 229 (Ala. 1994). ‘[T]he denial of relief by mandamus does not have res judicata effect.’ Cutler v. Orkin Exterminating Co., 770 So.2d 67, 69 (Ala.2000); Jack Ingram Motors, Inc. v. Ward, 768 So.2d 362 (Ala.1999); Quality Truck & Auto Sales, Inc. v. Yassine, 730 So.2d 1164, 1167 (Ala.1999).”

Ex parte Shelton, 814 So.2d 251, 255 (Ala. 2001). Further, even if the law as expressed in Shelton were not the law, Nationwide’s argument would fail given the facts of this case; because we dismissed Jadick’s petition for writ of mandamus on procedural grounds (untimeliness), we did not review the trial court’s decision on the merits, and, therefore, our dismissal had no res judicata effect.

In addressing the merits of the trial court’s denial of the motion to recuse, however, we conclude that the administrator’s arguments do not warrant reversal of the trial court’s decision. The applicable standard of review as to a ruling on a motion to recuse is well established:

“ ‘A trial judge’s ruling on a motion to recuse is reviewed to determine whether the judge exceeded his or her discretion. See Borders v. City of Huntsville, 875 So.2d 1168, 1176 (Ala.2003). The necessity for recusal is evaluated by the “totality of the facts” and circumstances in each case. [Ex parte City of ] Dothan Pers. Bd., 831 So.2d [1,] 2 [(Ala. 2002)]. The test is whether ‘“facts are shown which make it reasonable for members of the public, or a party, or counsel opposed to question the impartiality of the judge.’ ” In re Sheffield, 465 So.2d 350, 355-56 (Ala.1984) (quoting Acromag-Viking v. Blalock, 420 So.2d 60, 61 (Ala.1982)).’ ”

Ex parte Parr, 20 So.3d 1266, 1269 (Ala. 2009) (quoting Ex parte George, 962 So.2d 789, 791 (Ala.2006)). In support of why he believes the trial judge should have re-cused himself, the administrator argues that the trial judge improperly assumed that Nationwide had objected to Mullen’s second affidavit on the basis of Jadick’s failure to comply with Rule 56(c)(2) before Nationwide had actually objected on such grounds; that the trial judge referenced Jadick’s “actions during the claims adjustment process” as evidence indicating that Nationwide had a “reasonable and legitimate basis” to deny Jadick’s request for an appraisal but failed to cite contractual language to support that ..conclusion; that Jadick’s delay in seeking an appraisal is “mighty similar” to the delay in Rogers v. State Farm Fire & Casualty Co., 984 So.2d 382 (Ala.2007); that the summary-judgment order did not cite any contractual language prohibiting Jadick’s request for an appraisal; that the trial judge’s conclusion that the “unsworn” estimate from Hargrove was not enough to require an appraisal is unsupported by caselaw and “contrary to decades of appraisal history”; that the trial judge “illegally denied [Jadick] his right to contract and right to a jury trial” under the United States Constitution; that another judgment rendered by the trial judge had been reversed in another case involving Jadick; that the trial judge “changed procedural rules claiming his docket controlled over written notice and later claiming the exact opposite”; that the trial judge is not credible in the administrator’s opinion; and that the trial judge made false allegations against Jad-ick, including an allegation that Jadick had attempted to extort him.

Reduced to their essence, those arguments urge us to require recusal merely for allegedly committing errors in ruling on the case. However, recusal is not a remedy to be sought merely when a judgment is not in one’s favor, nor is review of a motion to recuse a vehicle for seeking review of the trial court’s judgment; moreover, a judgment adverse to the movant does not imply the existence of the trial judge’s personal prejudice or bias. See Curvin v. Curvin, 6 So.3d 1165,1170-71 (Ala.Civ.App.2008) (holding that the mere possibility that a trial judge is biased is insufficient to warrant recusal; “specific instances demonstrating bias or prejudice on the part of the trial court” must be shown). Additionally, the arguments alleging that the trial judge was biased against Jadick have no factual basis. Not only are the administrator’s arguments unaccompanied by factual evidence, but the arguments are difficult, if not impossible, to follow. Moreover, the administrator cites no caselaw requiring a trial judge to recuse himself for any of the reasons that, he argues, warrant recusal here. As we have iterated many times, “[a]n appellant is required, when making an argument, to cite legal authority in support of that argument.” Franklin v. Woodmere at the Lake, 89 So.3d 144,151 (Ala.Civ.App.2011); see also Rule 28(a)(10), Ala. R.App. P., and University of South Alabama v. Progressive Ins. Co., 904 So.2d 1242, 1247-48 (Ala. 2004). Because the administrator has not demonstrated that the trial judge acted outside his discretion in denying the motion to recuse, we conclude that the trial court’s decision was proper.

Next, we address whether the trial court erred in denying the motion to invoke the appraisal clause and to appoint an umpire and in concluding that Nationwide had not breached its insurance policy as a matter of law. 'At the outset, we reject Nationwide’s argument that the appeal of the trial court’s decision not to invoke the appraisal clause of the insurance policy is untimely because Jadick did not file a petition for a writ of mandamus within 42 days of the trial court’s denial of his motion. Nationwide’s argument assumes that Jadick was required to have filed a petition for a writ of mandamus as to the trial court’s denial of his motion to invoke the appraisal clause. However, it is only when an appeal will not provide a remedy adequate to prevent undue injury that a writ of mandamus will lie (for example, to require a trial court to comply with the mandate of an appellate court). See Ex parte Insurance Co. of North America, 523 So.2d 1064 (Ala.1988), and Environmental Waste Control, Inc. v. Browning-Ferris Indus., Inc., 711 So.2d 912, 913 (Ala.1997). Here, Jadick was not required to have sought the drastic remedy of mandamus as to the trial court’s denial of his motion to invoke the appraisal clause because, on appeal from a final judgment, an appellant may seek review of any order of the trial court in the case. See Rule 4(a), Ala. R.App. P. We thus turn to the merits of the contentions presented as to the breach-of-contract claim asserted by Jad-ick and whether the trial court erred in determining that the evidence offered by Jadick was insufficient to establish a question of material fact as to Jadick’s claims that Nationwide had engaged in bad faith and fraud.

It is well settled that summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c)(3), Ala. R. Civ. P. Once a party seeking summary judgment makes a prima facie case that there is no genuine issue of material fact, it then becomes the nonmov-ing party’s burden to present “substantial evidence” otherwise. Miller v. Archstone Communities Trust, 797 So.2d 1099, 1100-01 (Ala.Civ.App.2001) (citing Bass v. SouthTrust Bank of Baldwin Cnty., 538 So.2d 794, 798 (AIa.1989)). “Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Miller, 797 So.2d at 1101 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.

1989)). This court is required to construe the record in favor of the nonmoving party and to “resolve all reasonable doubts against the [moving party].” Miller, 797 So.2d at 1101 (citing Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala. 1990)); see also Ex parte Neese, 819 So.2d 584, 587 (Ala.2001) (quoting Bechtel v. Crown Cent. Petroleum Corp., 495 So.2d 1052,1053 (Ala.1986)).

“To establish a breach-of-contract claim, a plaintiff must show “‘(1) the existence of a valid contract binding the parties in the action, (2) his own performance under the contract, (3) the defendant’s nonperformance, and (4) damages.” ’ State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, 303 [(Ala.1999)] (quoting Southern Med. Health Sys., Inc. v. Vaughn, 669 So.2d 98, 99 (Ala. 1995) (citations omitted)).”

Ex parte Coleman, 861 So.2d 1080, 1085 (Ala.2003). At issue in this matter is whether Nationwide demonstrated that there was no genuine issues of material fact as to whether it performed its duties under the insurance policy and that it was, therefore, entitled to a judgment as a matter of law. Nationwide submitted an estimate regarding the loss, which was agreed to by Jadick, even though he had an opportunity to object. Jadick hired a contractor to make the repairs in accordance with that estimate. Nationwide paid the full amount of the estimate, and it even paid additional charges that had been incurred by the contractor.

The administrator argues that Nationwide breached its policy by failing to perform an appraisal when Jadick requested one, 15 months after the damage has already been repaired and after the claim had been paid in full. Nationwide reviewed his request and denied it, explaining that the condition precedent necessary to require that an appraisal be done — that the insurer and the insured party disagree on the amount of the loss — did not exist and, therefore, that the appraisal was unwarranted. Specifically, the administrator asserts (1) that the trial court erred in concluding that Jadick did not present evidence to rebut Nationwide’s claim that a disagreement did not exist so as to warrant invocation of the appraisal clause in the insurance policy; (2) that the trial court incorrectly presumed “without any specific factual allegations” or evidence indicating that, had it performed an appraisal, Nationwide would have been prejudiced by Jadick’s delay in requesting an appraisal; and (3) that Mullen’s second affidavit should not have been struck from the record.

The administrator vehemently asserts throughout his brief on appeal that Nationwide had acknowledged that a disagreement between the parties existed, and, thus, he says, Nationwide’s refusal to perform an appraisal based on its position that a disagreement did not exist demonstrates, by itself, that Nationwide “intentionally]” failed to perform its contractual promise by choosing not to perform an appraisal, thereby demonstrating that summary judgment was not appropriate as to the bad-faith claim; he further asserts that Nationwide’s contention “that the disagreement was brought to [its] attention too late” is a concession that a disagreement existed and, thus, establishes that Nationwide’s refusal to perform the appraisal, which was based on its conclusion that a disagreement did not exist, was a false assertion, an intentional effort to get out of performing the appraisal, and done in bad faith. Furthermore, the administrator argues that Nationwide’s request made in June 2009 that Jadick give it a certain amount of time to name an appraiser before commencing litigation is proof that Nationwide committed fraud by refusing the perform the appraisal based on its conclusion that disagreement between the parties did not exist; the administrator contends that Nationwide’s request demonstrated that it was aware of and had acknowledged that a disagreement existed between the parties before it made the decision not to perform an appraisal. On the other hand, Nationwide asserts that it did not breach the insurance policy, asserting that Jadick did not properly seek to invoke the appraisal clause of the insurance policy because he waited until 15 months after the claim had already been paid out in full and repairs had been completed to seek an appraisal.

We reject the administrator’s arguments that Nationwide’s acknowledgment that a disagreement existed between the parties after Jadick sought to invoke the appraisal clause establishes that Nationwide’s denial of his appraisal request based on its conclusion that no disagreement had existed was asserted in bad faith or fraudulently. The administrator’s arguments are asserted without context, fail to appreciate the term “disagreement” as it is applied in the contractual language of the insurance policy, and ignore the preliminary issue to be resolved regarding Jadick’s request for an appraisal — whether by his delay in requesting the appraisal Jadick had waived his right to an appraisal. A clear reading of the trial court’s judgment, the briefs of both parties, and the record establishes that the parties do not dispute that a disagreement arose at the moment Jadick first sought to invoke the appraisal clause in the policy. No one has denied that a disagreement existed once Jadick sought to invoke the appraisal clause; however, the terms of a contract must be interpreted with respect to the context of the contract. In this ease, the term “disagreement” does not connote a general sense of being at odds with another party. Similarly, the point the trial court sought to make in concluding that there was no disagreement is that, when the first estimate was submitted to Jadick by Nationwide, at that time or immediately thereafter, Jadick bore the burden of contacting Nationwide if he believed the estimate would not be adequate to cover all the necessary repairs.

The terms of the policy, as reflected in the cover page for the estimate, provided that Jadick was obligated to notify Nationwide “immediately” if he or Mullen Builders believed that additional coverage was necessary to perform the repairs. Not only did the terms of the policy require Jadick or Mullen Builders to contact Nationwide, but the cover page reflecting the terms of the policy further provided that “[c]overage for the hidden or additional damages and/or damaged items, would need to be determined, and may require an inspection/re-inspection, before any supplemental payment would be authorized.” It further requested that Jadick and Mullen Builders not “destroy, or discard any of the hidden, or additional damages, and/or damaged items, until we have had an opportunity to review the ... damaged items, and have reached an agreement with you on any supplemental cost” (emphasis added). The policy also provided that if Jadick and Nationwide were unable to reach an agreement on coverage, Jadick had the right to request an appraisal. Jadick, however, never objected in any way to Nationwide’s estimate. Jadick never indicated to Nationwide that he disagreed with the estimate provided by Nationwide until 15 months after the repairs had been made and after the claim had been paid in full. Thus, the issue is more narrow than the administrator contends: the question is not whether any disagreement exists but whether a disagreement was manifested so as to warrant invocation of the appraisal clause of the insurance policy or, in the alternative, whether Jadick’s waiting until after the repairs had been made and after the claim had been paid in full to express any discontent whatsoever with the amount of the loss assessed by Nationwide constituted a waiver of his right to seek an appraisal of the damage.

Each party argues that Rogers v. State Farm Fire & Casualty Co., 984 So.2d 382 (Ala.2007), supports its arguments as to whether Jadick waived his right to seek an appraisal. In Rogers, the insured party filed a claim relating to damage caused by a tornado, claiming that his house was a total loss. The insurer disagreed. After each party had had an engineer inspect the property, the insurer asked (via letter) the insured party to have the damaged property appraised by a third party; the insured party did not respond, so the insurer sent another letter with payment for the damage it had agreed to cover. Shortly thereafter, the insured party declined to initiate appraisal proceedings and, once again, requested that the insurer pay him an amount to cover the total loss of his house; the insurer again asked him to seek an appraisal. Approximately five months later, the insured party filed a breach-of-contract and bad-faith-refusal-to-pay action against the insurer. More than one year later, the insurer asked the insured party to settle the dispute pursuant the terms of the policy. A little over two months later, the insurer sought a partial summary judgment as to the bad-faith claim and moved for the appointment of an appraiser and/or an umpire.

The trial court in Rogers denied the insurer’s motion on the ground that the insurer had waived its right to invoke the appraisal clause of the insurance policy. On appeal, the supreme court reversed the trial court’s judgment, holding that the insurer had not waived its right to invoke the appraisal clause because the insured party had not “carried their heavy burden of showing substantial prejudice from [the insurer’s] delayed invocation of the appraisal clause.” Rogers, 984 So.2d at 388. The only evidence that the insured party had presented to establish that he would be prejudiced by the insurer’s invocation of the appraisal clause was that he had spent a large amount of money on the litigation during the more-than-one-year period between the filing of the lawsuit and the insurer’s invocation of the appraisal clause. The insurer, on the other hand, had argued that it was due a partial summary judgment because it had already tendered a check for the portion it had agreed to pay. Additionally, the insured party had not demonstrated that the large amount of money that he claimed to have spent on litigation had been expended exclusively for purposes of litigating the bad-faith claim, and was not in any way related to the breach-of-contract claim.

In his brief, the administrator argues solely that the facts of Rogers parallel the facts presented in this case and that Nationwide “has utterly failed to produce the evidence to meet its ‘heavy burden.’ ” We reject this argument. The evidence presented to the trial court was sufficient to support the trial court’s judgment that there was no genuine issue of material fact as to whether Jadick waived his right to seek an appraisal and that, therefore, Nationwide was entitled to a judgment as a matter of law. When property is appraised for the purpose of resolving insurance-coverage issues, it is imperative that the appraiser be able to evaluate the extent of the damage done to that property. By the time that Jadick sought to invoke his right to an appraisal, the damage had been repaired and, thus, the extent of that damage could not have been evaluated. Furthermore, the facts show that Jadick was familiar with the process for bringing coverage issues to Nationwide’s attention. Jadick was given written instructions explaining his need to bring coverage issues to Nationwide’s attention, as well as the need to preserve the damage, so that Nationwide could inspect the property and determine how to resolve the issues. Also, in January 2008, Jadick asked for additional money to be paid to Mullen Builders for certain unexpected expenses, and Nationwide agreed to pay those additional expenses; even that late into the repair process, Jadick still had not objected on any other grounds to the amount that Nationwide had stated it would pay. The vague basis of Jadick’s request for an appraisal is suspect, as well. Discovery documents show that Jadick conceded that he could not identify the additional damaged areas and/or items that the original estimate had not contemplated.

Lastly, the administrator argues that the trial court erred in striking Mullen’s second affidavit. Mullen’s first affidavit was filed in October 2010, and a supplemental affidavit, following the trial court’s grant of Nationwide’s motion to strike the first affidavit, was filed in December 2010 on the day the hearing was held on Nationwide’s motion for a summary judgment. The administrator argues that any deficiencies in the first affidavit were corrected in the second affidavit. Nationwide argues that the first affidavit was correctly struck from the record because Mullen’s statements were not based on personal knowledge or facts. Nationwide further argues that the second affidavit was filed the day of the hearing and was, therefore, properly struck because it was filed less than two days before the summary-judgment hearing. See Rule 56(c)(2). Assuming, without deciding, that the trial court erred in striking the affidavit, any error would have been harmless error. The affidavit merely substantiated Jadick’s contention that the original estimate given by Nationwide was, as the administrator asserts, an insufficient amount to fully repair the damage. However, it is Jadick’s own delay in seeking to invoke the appraisal clause of the policy that was fatal to his claim. The affidavit does not in any way assist Jadick in overcoming the fact that his delay in objecting to Nationwide’s original estimate amounted to a waiver of his right to seek an appraisal. In fact, Mullen’s statements, if accepted as true, make it all the more inexcusable and unreasonable that Jadick did not object to Nationwide’s estimate before or, at least, during the time when Mullen Builders was repairing the damages.

Based on the foregoing, we hold that waiting until 15 months after an insurance claim has been paid in full and after the damaged property has been repaired to seek an appraisal of the damaged property is so prejudicial to the insurer that it amounts to a waiver of the insured party’s right to an appraisal.

For the reasons stated above, the summary judgment entered in favor of Nationwide is affirmed.

AFFIRMED.

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

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

      . It is apparent from the record that Jadick wrote the trial judge an ex parte letter urging the trial judge to recuse himself from the matter. The trial court attached a copy of the ex parte letter that Jadick had submitted to the court to its order denying Jadick’s motion to recuse. Referencing that letter, the trial court explained that the ex parte communication engaged in by Jadick had been inappropriate and unethical.

      . We also address Jadick's bad-faith claim and his allegations of fraud.


source: Caselaw Access Project

author: PER CURIAM. MOORE, Judge,

license: Public Domain

text:
    Bobbi B. ENZOR v. Stephen B. ENZOR. Stephen B. Enzor v. Bobbi B. Enzor.
    2100105.
    Court of Civil Appeals of Alabama.
    Dec. 30, 2011.
    Rehearing Denied March 23, 2012.
    Certiorari Denied June 15, 2012 Alabama Supreme Court 1110845.

      L. Scott Johnson, Jr., Montgomery, for appellant/cross-appellee Bobbi B. Enzor.
    Chad A. Hopper of Buttram, Hawkins & Hopper, LLC, Centre, for appellee/cross-appellant Stephen B. Enzor.
   PER CURIAM.

Bobbi B. Enzor (“the wife”) appeals, and Stephen B. Enzor (“the husband”) attempts to cross-appeal, from a judgment of the Cherokee Circuit Court divorcing the parties, awarding custody of their two minor children, declining to award postmi-nority educational support with respect to one of the parties’ two adult children, awarding alimony, and dividing and allocating the parties’ marital assets and debts.

The civil action underlying the appeal was filed by the wife in December 2007; a pendente lite custody and support order was entered in January 2008, after which the husband filed an answer and a counterclaim seeking a divorce. Between May 2008 and April 2010, the parties filed numerous motions seeking findings of contempt against each other as to visitation issues, and the trial court held no fewer than 11 hearings in the case at which testimony and exhibits were received, ultimately culminating in a judgment entered on July 15, 2010, that expressly disposed of all claims then pending.

During the 30 days following the entry of that judgment, the wife notified the husband of her intent to relocate to Georgia, and then to Indiana, with the parties’ minor son; the husband filed objections to the proposed relocations; both parties filed motions to alter, amend, or vacate; and both parties filed papers asserting that the other party was in contempt of the final judgment and seeking sanctions therefor. The trial court entered several orders on September 16, 2010, including orders allowing the wife to relocate to Indiana with the minor son and amending certain discrete aspects of its judgment in response to the parties’ postjudgment motions, but it denied all other requested amendments. The wife then moved to vacate the order denying her postjudgment motion and the husband moved to vacate the partial denial of his postjudgment motion, which motions the trial court purported to grant by separate orders on October 5 and October 6, 2010. Those orders, and all further purported amendments to the final judgment, are nullities because a trial court has no jurisdiction to entertain motions that, in effect, seek reconsideration of orders denying postjudgment motions. See Hudson v. Hudson, 963 So.2d 92, 94 (Ala.Civ.App.2007). Under Hudson, then, the time for taking an appeal in this case began running after September 16, 2010.

The wife filed a timely appeal on October 28, 2010, the 42d day after the trial court’s rulings on the parties’ post-judgment motions; however, the husband did not file a notice of appeal until November 15, 2010, which is more than 42 days after the trial court’s rulings on the parties’ postjudgment motions and more than 14 days after the wife filed her notice of appeal. Under Rule 4(a)(2), Ala. R.App. P., only a cross-appeal filed on or before the later of those dates would be timely so as to invoke appellate jurisdiction. Thus, the husband’s cross-appeal is not timely, and it is dismissed pursuant to Rule 4(a)(2), Ala. R.App. P., Hudson, and Wil-coxen.

The wife raises seven issues in her brief on appeal. Viewed together, four of the wife’s seven issues may be classified as assailing the alimony and property-division aspects of the judgment; she also impugns the trial court’s denial of a postminority-support award, the trial court’s denial of an attorney-fee award, and the trial court’s award of custody of the parties’ minor daughter to the husband.

We first address the issue of the minor daughter’s custody. Our review is governed by the following principles:

“Alabama law gives neither parent priority in an initial custody determination. Ex parte Couch, 521 So.2d 987 (Ala.1988). The controlling consideration in such a case is the best interest of the child. Id. In any case in which the court makes findings of fact based on evidence presented ore tenus, an appellate court will presume that the trial court’s judgment based on those findings is correct, and it will reverse that judgment only if it is found to be plainly and palpably wrong. Ex parte Perkins, 646 So.2d 46 (Ala.1994). The presumption of correctness accorded the trial court’s judgment entered after the court has heard evidence presented ore tenus is especially strong in a child-custody case. Id.”

Ex parte Byars, 794 So.2d 345, 347 (Ala. 2001).

The record reveals that the minor daughter, who will attain the age of majority in April 2012, testified in camera that she preferred to live with the husband because she believed that he provided her with “more structure”; she opined that the husband was “dependable” and that he set reasonable rules for her that she respected, and she stated that she could confer with him about anything because “[h]e’s not going to blow up on me or start arguing with me.” In contrast, the wife was described as having profound anger issues by the minor daughter’s piano teacher (a witness subpoenaed by the wife herself), the husband’s mother testified that she had witnessed the wife using excessive corporal punishment upon one of the parties’ older children during their minority, and the minor daughter testified that the wife had repeatedly injected the pending divorce proceeding into their mutual conversations in order to antagonize the minor daughter and had referred to her in conversations with family friends as having been “brainwashed” by the husband. “While not dispositive, the preference of a child with regard to ... custody is entitled to much weight,” Brown v. Brown, 602 So.2d 429, 431 (Ala.Civ.App.1992), and the trial court could have deemed the minor daughter to have been of sufficient age and discretion to merit aligning its custody award with her wishes.

That conclusion is not rendered unsound by the existence of evidence, cited by the wife in her principal brief to this court, that the husband had abused her on certain occasions during the minor daughter’s infancy so as to raise a rebuttable presumption, under Ala.Code 1975, § 30-3-130 et seq., that he should not be the daughter’s custodian for the remainder of her minority. There was no evidence presented indicating that the incidents claimed by the wife to have constituted abuse had any effect upon the minor daughter, a factor that a trial court must consider in determining any custody dispute, regardless of whether a rebuttable presumption may have arisen that an alleged perpetrator of family violence seeks custody of a minor child. See Ala.Code 1975, § 30-3-131. The silence of the record on that point counsels deference to the trial court’s implicit conclusions in favor of the husband. See Smith v. Smith, 887 So.2d 257, 263 (Ala.Civ.App.2003).

We note that, in her reply brief, the wife asserts, for the first time, that the trial court’s custody judgment is also infirm because it separates the 18-year-old minor daughter’s custody from that of the 17-year-old minor son (who, unlike his sister, expressed a strong desire to live with the wife and who has been permitted by the trial court to relocate with her to Indiana). An appellate court cannot consider arguments raised for the first time in an appellant’s reply brief, see Byrd v. Lamar, 846 So.2d 334, 341 (Ala.2002), and we will not do so here.

We next consider the trial court’s property division and alimony award.

“The well-established standard of review is that a divorce judgment based on ore tenus evidence is presumed correct. See Robinson v. Robinson, 795 So.2d 729 (Ala.Civ.App.2001). Such a judgment will be reversed only where it is unsupported by the evidence so as to be plainly and palpably wrong. Id. at 733. On appeal the division of property and the award of alimony are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either issue. See O’Neal v. O’Neal, 678 So.2d 161 (Ala.Civ.App.1996). A property division does not have to be equal in order to be equitable based on the particular facts of each case; a determination of what is equitable rests within the sound discretion of the trial court. See Golden v. Golden, 681 So.2d 605 (Ala.Civ.App. 1996).”

Baggett v. Baggett, 855 So.2d 556, 559 (Ala. Civ.App.2003). Under Alabama precedents, a trial court is to consider a number of factors when determining a party’s need for alimony and when dividing marital property, including “ ‘the length of the marriage, the age and health of the parties, the future employment prospects of the parties, the source, value, and type of property owned, and the standard of living to which the parties have become accustomed during the marriage.’” Ex parte Elliott, 782 So.2d 308, 311 (Ala.2000) (quoting Nowell v. Nowell, 474 So.2d 1128, 1129 (Ala.Civ.App.1985)). The trial court’s judgment expressly notes that those factors were considered.

In its judgment, the trial court awarded the wife a 2007 Buick automobile (subject to the debt thereon), an array of banking and investment accounts evidenced as being worth $153,878.08, and dividends held in her counsel’s trust account amounting to $761.81. The husband was awarded, in addition to the marital residence in Alabama, several motor vehicles older than the wife’s automobile and banking and investment accounts worth $157,366. Although the wife contends in her principal appellate brief, based upon the value of the marital residence as calculated by local taxing authorities, that the husband received an asset worth $548,240 (which, she says, represented “overwhelmingly” the most valuable marital asset), the ■wife herself admitted in her testimony that that valuation was too high in light of current real-property-market conditions. In contrast, the husband, who had occupied the marital residence with the wife before their separation and without the wife after the entry of a pendente lite order (and who was therefore competent to testify as to its value, see Ingram v. Ingram, 602 So.2d 418, 420 (Ala.Civ.App. 1992)), opined that the residence would, if ordered sold, yield as little as $275,000 in proceeds and observed that the indebtedness on the residence was just over $174,000, indicating a potential equity position of only about $101,000. Clearly, the trial court could have credited the husband’s valuation and was not bound to accept the wife’s valuation; further, the trial court, as the trier of fact, could properly have declined to accept as conclusive the wife’s valuation opinion. See Childs v. Huff, 586 So.2d 939, 941 (Ala.Civ.App. 1991).

Taking the husband’s suggested valuation figures as true, the wife was awarded specific assets worth at least $154,689.89, whereas the husband was awarded specific assets worth approximately $258,366 (but was also allocated a $25,000 corporate debt). Thus, of the parties’ net identified assets worth just over $888,000, the wife received a share of approximately 40%. However, as the husband notes in his appellate brief, the parties were also awarded “all personal property within his or her respective possession and control as of the date of’ the final judgment, and the husband testified that the wife had stripped the marital residence of its furnishings just after the husband was awarded pendente lite possession thereof — items of personal property that were never restored to the husband and which were awarded to the wife in the trial court’s judgment. Finally, the wife was awarded three years of monthly rehabilitative-alimony payments of $1,833, or a total of $65,988. Viewed in the aggregate, then, we cannot conclude that the property and alimony provisions of the trial court’s judgment are inequitable.

The wife also contends that the trial court erred in failing to reserve the issue of periodic alimony for subsequent adjudication in a modification proceeding, citing, among other cases, the main opinion in Edwards v. Edwards, 26 So.3d 1254 (Ala.Civ.App.2009), for the proposition that when a trial court awards “rehabilitative” alimony, it is reversible error for the court not to reserve the right to award “periodic” alimony in the future. See also Fowler v. Fowler, 773 So.2d 491, 495 (Ala.Civ.App. 2000). We note that two judges disagreed with the main opinion in Edwards as to the necessity of reserving the issue of periodic alimony when rehabilitative alimony has been awarded. 26 So.3d at 1262 (Thomas, J., concurring in part and concurring in the result in part, joined by Pittman, J.).

Upon reevaluation of the essential nature and purpose of rehabilitative alimony, which this court has correctly described as being a mere subclass of periodic alimony that allows a spouse time to begin (or to resume) supporting himself or herself, see Giardina v. Giardina, 987 So.2d 606, 620 (Ala.Civ.App.2008), a majority of this court is now convinced that we should not reverse a judgment when the trial court has failed to reserve the right to award something it has already awarded. When a trial court awards limited or “rehabilitative” alimony, that court has in fact exercised its power to award alimony and may modify that award at any time, on petition of either party, before the award expires. See, e.g., Treusdell v. Treusdell, 671 So.2d 699, 704 (Ala.Civ.App.1995) (three-year award of periodic alimony described as rehabilitative in nature and “subject to future modification, including extension and increase, upon changed circumstances”). In this case, the wife’s rehabilitative-alimony award extends into mid-2013, and the wife may seek a modification of her rehabilitative-alimony award at any time before its expiration. Our adoption of this view warrants affirmance of the trial court’s judgment notwithstanding its failure to expressly state that the wife has a right to seek such a modification. Cf. Rule 52(a), Ala. R. Civ. P. (noting that the inclusion of factual findings and statements of conclusions of law in a judgment is not mandatory except when required by statute). To the extent that the main opinions in Edwards, Giardina, and similar cases hold to the contrary, they are overruled.

Citing only Ex parte Bayliss, 550 So.2d 986 (Ala.1989), as authority, the wife also contends that the husband should have been compelled to pay part of the educational expenses of the parties’ second daughter, who was a college student at the time of trial. The trial court, in denying that relief, opined that it had considered “each child’s relationship with each parent and each child’s responsiveness to parental advice and guidance,” and, with specific reference to the second daughter, that court determined that, as to the husband, “she was neither forthcoming or truthful concerning her education expenses, and, through the same processes, without reason, increased her education/living expenses.” We note that “[citations to general authority do not meet the requirements of Rule 28, Ala. RApp. P.,” so as to warrant substantive appellate review of an issue. Stockton v. CKPD Dev. Co., 936 So.2d 1065, 1078-79 (Ala.Civ.App.2005). However, even were this issue properly presented for review, affirmance would be warranted on the basis of the husband’s testimony that the second daughter had deliberately prevented the husband from accessing pertinent financial records from her college; had abused the scope of the trial court’s pen-dente lite postminority-support order by submitting to the husband for reimbursement receipts for plainly noneducational expenses such as gasoline, video discs, and candy; and had refused to communicate with the husband about expense matters, stating: “[M]om said I don’t have to do it. You just have to pay.” See Bayliss v. Bayliss, 575 So.2d 1117, 1121 (Ala.Civ. App.1990) (acknowledging principle that repudiation of parent by adult child and unreasonable refusal to associate with the parent will warrant denial of postminority support).

Finally, the wife contends that the trial court erred in failing to award her an attorney fee. The award of an attorney fee in a divorce case is within the sound discretion of the trial court and will not be reversed except for an abuse of discretion; the factors to be considered by the trial court in a divorce action in making an attorney-fee award include the results of the litigation. Korn v. Korn, 867 So.2d 338, 346-47 (Ala.Civ.App.2003) (quoting Brasfield v. Brasfield, 679 So.2d 1091,1095 (Ala.Civ.App.1996)). In this case, neither party was awarded sole custody of both minor children, as had been requested; the wife’s postminority-support request as to the second daughter was properly denied; the wife was found in contempt of court for having failed to pay pendente lite support; and the wife was specifically found to have primarily caused the trial court to have had to “micromanage the issues such as temporary visitation in this cause.” Considering the outcome of the litigation and the culpable conduct on the wife’s part, we cannot conclude that the denial of an attorney-fee award was outside the trial court’s discretion.

AFFIRMED AS TO THE APPEAL; CROSS-APPEAL DISMISSED.

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

MOORE, J., concurs in part and dissents in part, with writing.

MOORE, Judge,

concurring in part and dissenting in part.

I concur in all aspects of the main opinion except for that portion dealing with the failure of the trial court to reserve jurisdiction to award Bobbi B. Enzor periodic alimony. As the main opinion notes, our caselaw has consistently held that, when awarding rehabilitative alimony, a trial court commits reversible error by failing to reserve jurisdiction to later award periodic alimony. See, e.g., Edwards v. Edwards, 26 So.3d 1254 (Ala.Civ.App.2009), and Fowler v. Fowler, 773 So.2d 491, 495 (Ala.Civ.App.2000). The main opinion overrules that consistent line of cases on the ground that, because there is no substantive distinction between rehabilitative alimony and periodic alimony, the award of the former impliedly entails the right to modify the judgment to award the latter, at least so long as the rehabilitative-alimony period has not expired. 98 So.3d at 22. I respectfully disagree.

As I explained at length in my dissent in Stanford v. Stanford, 34 So.3d 677, 681-86 (Ala.Civ.App.2009) (Moore, J., dissenting), the law recognizes a distinction between rehabilitative alimony and periodic alimony. Although rehabilitative alimony has been described as a “sub-class” of periodic alimony, see Jeffcoat v. Jeffcoat, 628 So.2d 741, 743 (Ala.Civ.App.1993), overruled on other grounds by Crenshaw v. Crenshaw, 816 So.2d 1046, 1048 (Aa.Civ.App.2001), the two forms of alimony are not the same, and an award of one does not imply an award of the other. The former is designed to provide temporary support for a dependent spouse until that spouse can become self-supporting through vocational rehabilitation or otherwise. The latter is designed to provide more long-term support for a dependent spouse who cannot otherwise achieve the economic level necessary to maintain the former marital lifestyle. Rehabilitative alimony may totally fulfill its purpose, thereby obviating the need for periodic alimony entirely; conversely, periodic alimony may be the only viable remedy if a dependent spouse has no real potential for economic rehabilitation. In some cases, rehabilitative alimony may only partially relieve the dependency of the receiving spouse, requiring additional periodic alimony in order to allow that spouse to maintain the former marital standard of living. In any case, the two forms of alimony serve mutually exclusive ends. Hence, our prior caselaw correctly decided that a trial court does not automatically reserve jurisdiction to award periodic alimony when ordering rehabilitative alimony.

Therefore, I respectfully dissent as to this issue. I find our prior treatment of this issue to be correct, and I find no compelling justification for overruling our established caselaw on the subject, particularly in the absence of any invitation to do so. Moore v. Prudential Residential Sens. Ltd. P’ship, 849 So.2d 914, 926 (Ala. 2002) (“Stare decisis commands, at a minimum, a degree of respect from this Court that makes it disinclined to overrule controlling precedent when it is not invited to do so.”).

      . As noted in Decker v. Decker, 984 So.2d 1216, 1220 (Ala.Civ.App.2007), under Wilcoxen v. Wilcoxen, 907 So.2d 447, 449 n. 1 (Ala. Civ.App.2005), the parties' postjudgment contempt motions did not affect the finality of the trial court's judgment and postjudgment orders because they, in effect, initiated new actions unrelated to the divorce proceeding.

      . Assuming that it was preserved for appellate review, the wife's claim that the trial court has somehow unconstitutionally divested her of her interest in the marital residence while leaving intact her personal responsibility for the indebtedness thereon is flatly contradicted by the trial court’s provision in its judgment that the husband "shall be solely responsible for the debt owed on the residence and shall hold the [wife] harmless for any default in the repayment thereof.”

      . Although the wife elicited testimony from her own father, who has a financial-analysis vocational background, to the effect that he could not account for some $40,000 in lost value of the parties' assets over the nine months following the date that the wife filed her divorce complaint in December 2007, the husband testified that the parties’ investment holdings had suffered significant reversals as a result of the general stock-market declines in 2008. The trial court, rather than believing that the husband had necessarily squandered marital assets, may well have deemed the losses suffered by the parties to have been “in common with the losses sustained by millions of wise and prudent investors” during that period. First Nat'l Bank of Birmingham v. Basham, 238 Ala. 500, 511, 191 So. 873, 882 (1939).

      . We reach this conclusion despite the wife's claim that the husband should be punished for his having committed adultery. The trial court did not divorce the parties on that ground, however; the parties were instead divorced on the grounds of incompatibility of temperament and irretrievable breakdown of the marriage. When such grounds exist, and when (as in this case) the adulterous spouse's conduct is not the sole contributing factor in the divorce (a fact that the trial court noted in finding that "strife and discord has existed for some time in this relationship arising from several sources including both the [wife] and the [husband]"), a trial court does not act outside its discretion in failing to monetarily punish the adulterous spouse in its property and alimony awards. See Boothe v. Boothe, 564 So.2d 995, 996 (Ala.Civ.App.1990).

      . As to the parties' minor daughter, the husband was directed to be responsible for 75% of her postminority education expenses, with the wife being responsible for 25% thereof; the issue of the minor son’s postminority support was reserved for later adjudication by the trial court.


text:
    John E. VAJNER, Jr. v. Suzanne P. VAJNER.
    2100178.
    Court of Civil Appeals of Alabama.
    March 23, 2012.
    Rehearing Denied June 15, 2012.

      Robert E. Gibney, Mobile, for appellant.
    Grady R. Edmondson, Mobile, for appel-lee.
   PER CURIAM.

John E. Vajner, Jr. (“the former husband”), appeals from a judgment of the Mobile Circuit Court holding him in contempt of court for failing to pay periodic alimony, awarding Suzanne P. Vajner (“the former wife”) a periodic-alimony arrearage of $24,420, denying his request for a temporary suspension of his obligation to make periodic-alimony payments, and denying his request for a modification of the former wife’s child-support obligation. We affirm.

Facts and Procedural History

On September 4, 2008, the trial court entered an order finding that grounds for divorcing the parties existed; that order also provided for the custody and support of their triplet sons, pursuant to the parties’ settlement agreement. The trial court awarded sole physical custody of two sons to the former husband and sole physical custody of one son to the former wife, ordered the former wife to pay the former husband child support in the amount of $114 per month, and made the former husband responsible for health insurance coverage and noncovered medical and dental expenses for all three children. The trial court reserved all other issues.

Six months later, in March 2009, the former husband, a civil engineer, was laid off from his job at a Mobile engineering firm when the firm’s client, ThyssenKrupp Steel USA, LLC, canceled the project on which the former husband had been working. Following a hearing on the reserved issues, the trial court entered a judgment on September 17, 2009, that, among other things, determined that the former husband “ha[d] demonstrated an ability to earn in excess of $140,000 per year” and ordered him to pay the former wife $2,000 per month in periodic alimony. The trial court also ordered the marital residence to be sold and the net proceeds to be divided equally between the parties; awarded possession of the marital residence pending such sale to the former husband and made the former husband responsible for the mortgage indebtedness, insurance, maintenance, and taxes on the residence; awarded the former husband all financial accounts in his name; and required the former husband to pay the private-school tuition for the son in the custody of the former wife. The former husband did not appeal from the September 17, 2009, judgment.

Four months later, the former wife filed a complaint seeking a finding of contempt as to the former husband, alleging that he had failed to make any periodic-alimony payments. The former husband answered and counterclaimed, asserting that he continued to be unemployed and seeking a temporary suspension of his obligation to make periodic-alimony payments until he had obtained employment. He also sought a modification of the divorce judgment to increase the former wife’s child-support payment. At the time of the trial of this case in August 2010, the marital residence had been sold, yielding net proceeds of $78,681.61.

The trial court heard the testimony of the parties and received.documentary evidence. The former wife, a 46-year-old ultrasound technician at a Mobile physician’s office, submitted her 2009 federal-income-tax return showing an adjusted gross income of $48,901. She testified that during the 11 months after the entry of the September 17, 2009, judgment she had incurred credit-card indebtedness of approximately $20,000 because, she said, her monthly gross income of $3,643 was insufficient without the former husband’s periodic-alimony payments to cover her monthly living expenses. Over the objection of counsel for the former husband, the trial court admitted documentary evidence indicating that the former husband had retirement accounts totaling more than $1 million.

The 53-year-old former husband has a bachelor’s degree in mechanical engineering from Purdue University. His 2008 and 2009 federal-income-tax returns show adjusted gross incomes of $104,060 and $31,452, respectively. The former husband testified that his 2008 return reflected the “most he had ever made” as an engineer; he said that his 2009 return reflected 2 months’ salary ($21,860) before he had been laid off and 10 months of unemployment-compensation benefits after he had been laid off — benefits of approximately $1,000 per month that, he said, had constituted his only income since March 2009. The former husband stated that he had monthly expenses of $4,675, including an $883 monthly premium on a health-insurance policy for himself and the two children in his custody, and a $1,167 mortgage payment before the marital residence had been sold and, afterwards, monthly rent of $850. In addition, he said, he had been paying the private-school tuition of $1,073 per month for the son in the custody of the former wife. He testified that during the 17 months after his layoff he had paid the living expenses for himself and the two children in his custody by using his unemployment-compensation benefits, the funds in his checking account and two savings accounts, and “some help from family.” He said that the two savings accounts, which had contained a combined total of approximately $30,000 in March 2009, had been reduced to a combined total of $2,686 by August 2010. The former husband acknowledged that he could have used the funds in those accounts to make his alimony payments, but, he said, he had “chose[n] not to” do so. He testified that he had not withdrawn any amounts from his retirement accounts and that, although he had tried to borrow from his Chevron 401 (k) account, he had been unable to do so because he was not then an employee of Chevron.

The former husband stated that he had been actively seeking employment since March 2009. He testified that he had sought assistance through 5 career-placement agencies and had applied for employment with 3 engineering firms in Mobile and 15 other companies. The former husband submitted electronic-mail correspondence documenting his attempts to find employment from March 2009 through July 2010. He stated that he had not, however, been offered any position. The former wife acknowledged that she had no evidence indicating that the former husband (a) was currently employed, (b) had been offered employment, (c) had not continuously sought employment after he had been laid off, or (d) had withdrawn any funds from his retirement accounts.

The trial court entered a judgment on August 6, 2010, determining that the former husband was in contempt of court for nonpayment of periodic alimony and awarding the former wife a periodic-alimony arrearage of $24,420 to be paid from the former husband’s share of the proceeds from the sale of the marital residence. The trial court expressly denied the former husband’s motion for a temporary suspension of his obligation to make periodic-alimony payments and impliedly denied his request for a modification of the child-support provisions of the divorce judgment. The August 6, 2010, judgment includes no findings of fact, but it states that the trial court’s decision was based upon “the sworn testimony and demeanor of the witnesses.” Following the denial of his postjudgment motion, the former husband timely appealed to this court.

Standard of Review

“‘A decision to modify an award of periodic alimony is within the sound discretion of the trial court. Bush v. Bush, 784 So.2d 299, 300 (Ala. Civ.App.2000). The trial court’s judgment on this matter is presumed correct and will not be reversed unless it is unsupported by the evidence or is otherwise plainly and palpably wrong. Posey v. Posey, 634 So.2d 571, 572 (Ala.Civ.App.1994). A periodic-alimony obligation may be modified only upon a showing of a material change of circumstances that has occurred since the last award was made. Kiefer v. Kiefer, 671 So.2d 710, 711 (Ala.Civ. App.1995).
“R.L.W. v. C.L.W., 872 So.2d 876, 877 (Ala.Civ.App.2003). ‘Even if a change of circumstances is shown, the trial court is not required to grant the modification.’ Kiefer v. Kiefer, 671 So.2d 710, 711 (Ala. Civ.App.1995) (citing Mullins v. Mullins, 475 So.2d 578 (Ala.Civ.App.1985)).
“The determination of whether a party is in contempt of court rests entirely within 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.” ’ Gordon v. Gordon, 804 So.2d 241, 243 (Ala.Civ. App.2001) (quoting Stack v. Stack, 646 So.2d 51, 56 (Ala.Civ.App.1994)).”

Miller v. Miller, 47 So.3d 262, 264 (Ala. Civ.App.2009).

“ ‘[T]he modification of a child-support order rests soundly within the trial court’s discretion and will not be disturbed on appeal absent a showing that the ruling is not supported by the evidence and, thus, is plainly and palpably wrong. Berryhill v. Reeves, 705 So.2d 505 (Ala.Civ.App.1997).’ ”

Thomas v. Campbell, 960 So.2d 694, 696-97 (Ala.Civ.App.2006) (quoting Lindsey v. Patterson, 883 So.2d 223, 225 (Ala.Civ.App. 2003)).

Suspension of Periodic Alimony

Citing Whited v. Whited, 65 So.3d 418 (Ala.Civ.App.2010); Poh v. Poh, 64 So.3d 49 (Ala.Civ.App.2010); King v. Barnes, 54 So.3d 900 (Ala.Civ.App.2010); Miller, supra; Rotar v. Weiland, 591 So.2d 893 (AIa.Civ.App.1991); and Wise v. Wise, 396 So.2d 111 (Ala.Civ.App.1981), the former husband argues that the trial court ignored uncontroverted evidence demonstrating that he did not have the ability to pay periodic alimony from his current income, which income, he says, consisted solely of unemployment-compensation benefits.

We will focus on only two of the six cases cited by the former husband — Miller and Whited — because they concern periodic alimony; the other four cases deal with child support. In Miller, the divorce judgment required the former husband (who was then employed and earning $80,000 annually) to pay the former wife $1,500 per month in periodic alimony. After the divorce, the former husband lost his job and stopped making alimony payments. The former wife filed a complaint seeking a finding of contempt as to the former husband; the former husband counterclaimed, seeking to terminate his periodic-alimony obligation. The former wife did not dispute the former husband’s testimony that he had sought employment continuously since the time he had lost his job. Nor did she dispute the former husband’s testimony that his only income was $800 per month in retirement benefits. The trial court determined that the former husband was in contempt of court for failing to pay periodic alimony and refused to terminate the former husband’s periodic-alimony obligation. This court reversed, holding that, without an express finding concerning the former husband’s ability to pay periodic alimony, the trial court’s implied finding that the former husband had sufficient income to pay was unsupported by the evidence.

Miller is distinguishable because it turned on the trial court’s failure to make (or the lack of evidence to support) a finding that the obligor had the ability to pay.

In the present case, however, the trial court had already made an express finding in its September 17, 2009, judgment that, despite being unemployed, the former husband had the ability to pay the wife $2,000 per month in periodic alimony. The former husband did not appeal from that determination. Therefore, the trial court’s determination as to the former husband’s ability to pay became the law of the case. “ ‘ “Under the doctrine of the ‘law of the case,’ whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.” ’ ” McMorrough v. McMorrough, 930 So.2d 511, 514 (Ala.Civ.App.2005) (quoting Stephens v. Stephens, 699 So.2d 194, 196 (Ala.Civ.App.1997), quoting in turn Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala.1987)).

The former husband cites Whited for the proposition that when a recipient former spouse fails to rebut undisputed evidence indicating that an unemployed payor former spouse does not have the ability to pay periodic alimony, a judgment in which the trial court either makes an initial award of alimony or declines to modify an existing alimony award is not based on sufficient evidence and must be reversed. Whited, 65 So.3d at 420-21. That proposition is unassailable, but it does not help the former husband in this case for two reasons. First, unlike the obligors in Whited and Miller, the former husband acknowledged at trial that he had regularly been paying his monthly living expenses by using both his unemployment-compensation benefits and the funds in his checking and savings accounts. Compare Stamm v. Stamm, 922 So.2d 920, 924 (Ala. Civ.App.2004) (affirming a judgment holding the former husband in contempt and directing his brokerage firm to pay the former wife $19,200 in a lump sum to satisfy the former husband’s alimony ar-rearage because the trial court could have inferred that the former husband had withdrawn $80,000 from his individual retirement accounts (“IRAs”) “for regular living expenses and, therefore, [the trial court] was free [to] consider the ex-husband’s IRAs as a source of income from which the ex-husband could be required to pay alimony”); Yohey v. Yohey, 890 So.2d 160, 168 (Ala.Civ.App.2004) (holding that “the trial court was entitled to disbelieve the husband’s testimony [that withdrawals from his retirement accounts were for emergency needs] and to conclude that ... the husband was currently drawing benefits from and regularly relying on his retirement accounts as ‘income’ ”).

Second, as we have previously discussed, the trial court decided the issue of the former husband’s ability to pay $2,000 per month in periodic alimony on September 17, 2009 — 11 months before the trial of this case — and, because the former husband did not appeal from that judgment, the trial court’s ruling became the law of the case. The former wife had no burden of rebuttal; instead, the former husband had the burden to show that the facts upon which the September 17, 2009, judgment was predicated were not the same as the facts on August 2, 2010, when the present case was tried.

The former husband does not argue that his attempts to find employment after the hearing leading up to the September 17, 2009, judgment were more extensive than his earlier attempts from March through September 2009. In his brief to this court, the former husband has failed to explain how the evidence presented at the modification hearing regarding his job search or the economic conditions prevailing in the engineering industry differed in any material respect from the evidence presented at the hearing leading up to the September 17, 2009, judgment.

In Ex parte Murphy, 886 So.2d 90 (Ala. 2003), our supreme court stated:

“ ‘In making [a] determination [whether to modify periodic alimony], the trial court should consider such factors as the recipient spouse’s financial needs, the amount of the estate of each spouse, the ability of the payor spouse to respond to the recipient spouse’s needs, the ability of each spouse to earn income, and the remarriage of either party.”

886 So.2d at 92 (quoting Swain v. Swain, 660 So.2d 1356, 1357 (Ala.Civ.App.1995), citing in turn Marshall v. Marshall, 622 So.2d 390 (Ala.Civ.App.1993)) (emphasis added). In Shewbart v. Shewbart, 64 So.3d 1080 (Ala.Civ.App.2010), this court stated:

“Once the financial need of the ... spouse [seeking periodic alimony] is established, the trial court should consider the ability of the responding spouse to meet that need. See Herboso v. Herboso, 881 So.2d 454, 458 (Ala.Civ.App. 2003). The ability to pay may be proven by showing that the responding spouse has a sufficient separate estate, following the division of the marital property, see § 30-2-51(a), Ala.Code 1975, and/or sufficient earning capacity to consistently provide the petitioning spouse with the necessary funds to enable him or her to maintain the parties’ former marital standard of living. Her-boso, supra.”

64 So.3d at 1088 (emphasis added). See also Whited, 65 So.3d at 420; Sosebee v. Sosebee, 896 So.2d 557, 560 (Ala.Civ.App. 2004); Kiefer v. Kiefer, 671 So.2d 710, 711 (Ala.Civ.App.1995); Posey v. Posey, 634 So.2d 571, 573 (Ala.Civ.App.1994); and White v. White, 589 So.2d 740, 742 (Ala. Civ.App.1991).

Contempt

The trial court had previously determined, on September 17, 2009, that the former husband had the ability to pay periodic alimony. In the trial of the present case on August 2, 2010, the former husband acknowledged that he could have made the court-ordered alimony payments by using the funds in his savings accounts but that he had chosen not to do so. The trial court was, therefore, authorized to find that the former husband had committed a “willful, continuing failure or refusal ... to comply with a court’s lawful ... order.” Rule 70A(a)(2)(D), Ala. R. Civ. P. The trial court determined that the former husband “shall be allowed to purge himself of such contempt by obeying all future orders.” The trial court entered a judgment in favor of the former wife in the amount of the alimony arrearage ($24,420) and directed that the judgment be satisfied by paying to the former wife $24,420 from the sale of the marital residence, proceeds then being held in the office of the circuit clerk. The judgment finding the former husband in contempt of court is affirmed.

Modification of Child Support

The former husband requested that the former wife’s child-support obligation be modified, because, he asserted, his share of the parties’ adjusted gross income had decreased dramatically. When the trial court found that the former husband had the capacity to earn $140,000 annually, it necessarily rejected the assertion made the basis of the former husband’s request for a modification. Further, the former husband presented no evidence indicating that the needs of the children in his custody had increased. Accordingly, the trial court’s judgment denying the former husband’s request for a modification of the former wife’s child-support obligation is due to be affirmed.

AFFIRMED.

All the judges concur.


author: PITTMAN, Judge.

text:
    Charles Gregory LAMBERT v. David McPHERSON et al.
    2100766.
    Court of Civil Appeals of Alabama.
    March 30, 2012.
    Rehearing Denied June 1, 2012.

      Michael C. Lambert, Athens, for appellant.
    E. Shane Black of Hand Arendall, L.L.C., Athens, for appellees.
   PITTMAN, Judge.

Charles Gregory Lambert appeals from a judgment of the Limestone Circuit Court dismissing his complaint to enforce the Alabama Open Meetings Act, § 36-25A-1 et seq., Ala.Code 1975 (“the Act”). The complaint named as defendants David McPherson, Russell Johnson, Larry Kee-num, Beverly Malone, and James Lucas— five of the seven members of the Athens City Board of Education (“the Board”). We affirm.

Facts and Procedural History

After amendment, Lambert’s complaint alleged that the defendants had participated in school-board meetings via e-mail, “where decisions were made prior to voting in open meetings”; that such meetings had been held without the required public notice; that the defendants had engaged in improper deliberation about litigation strategy in executive session; and that the defendants had circumvented the Act by conferring with the attorney for the Board via cellular telephone and e-mail. The defendants denied the allegations and asserted various affirmative defenses.

The trial court held a preliminary hearing on the complaint, as required by § 36-25A-9, Ala.Code 1975. At that hearing, the trial court took no testimony; the court admitted one item of documentary evidence, heard arguments of counsel, and then took the matter under advisement. As the only evidence in support of his complaint, Lambert submitted an e-mail message that, the parties stipulated, had been sent on May 21, 2010, by school-board member Larry Keenum to all other board members. The e-mail message is not contained in the record on appeal, but the parties agree that the message expressed Keenum’s disagreement with a proposed change to a Board policy concerning renewal of contracts for coaches or other employees of the Board who had supplemental contracts — a matter that had been expected to come before the Board for a decision and that was, in fact, addressed at a meeting of the Board on July 15, 2010.

Section 86-25A-l(a), Ala.Code 1975, provides:

“It is the policy of this state that the deliberative process of governmental bodies shall be open to the public during meetings as defined in Section 36-25A-2(6). Except for executive sessions permitted in Section 36-25A-7(a) or as otherwise expressly provided by other federal or state statutes, all meetings of a governmental body shall be open to the public and no meetings of a governmental body may be held without providing notice pursuant to the requirements of Section 36-25A-3. No executive sessions are required by this chapter to be held under any circumstances. Electronic communications shall not be utilized to circumvent any of the provisions of this chapter.”

(Emphasis added.)

Lambert argued that Keenum’s e-mail message itself constituted a “meeting” under the Act because, he said, when Kee-num “sends out a message to all the board members and he details in it his position on something they’re going to vote on, his position about other meetings, and other things that have taken place and how he feels about board policy that’s coming up, that constitutes a meeting.” In response, the defendants argued that Keenum’s email message was not a “meeting,” as defined in § 36-25A-2(6)a.3., because it did not involve “deliberation,” as defined in § 36-25A-2(l). Section 36-25A-2(6)a.3. defines “meeting,” in pertinent part, as

“[t]he gathering, whether or not it was prearranged, of a quorum of a governmental body or a quorum of a committee or a subcommittee of a governmental body during which the members of the governmental body deliberate specific matters that, at the time of the exchange, the participating members expect to come before the body, committee, or subcommittee at a later date.”

Section 36-25A-2(l) defines “deliberation” as

“[a]n exchange of information or ideas among a quorum of members of a governmental body intended to arrive at or influence a decision as to how the members of the governmental body should vote on a specific matter that, at the time of the exchange, the participating members expect to come before the body immediately following the discussion or at a later time.”

After hearing arguments, the trial court stated that it was inclined to believe that a single board member cannot “taint the whole board and violate the Open Meetings [Act by] firing away a letter or an email. To me, it is not an exchange of information. It is one-sided.... That’s not a meeting.”

The day after the preliminary hearing and before the trial court had ruled, Lambert filed a second amended complaint, referencing an e-mail message that had allegedly been sent to Keenum by a board member who was not a defendant in the case. Lambert alleged that he had been made aware of that message in September 2010. The defendants moved to disallow the amendment on the ground that it represented an improper attempt to introduce additional evidence of which Lambert had been aware in November 2010 when he filed the complaint but that he had failed to present at the preliminary hearing. The defendants further argued that the additional evidence did not indicate that a violation of the Act had occurred.

On April 11, 2011, the trial court disallowed the amendment and entered a judgment in favor of the defendants. Lambert timely appealed; his appeal was transferred by the supreme court to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

Standard of Review

Section 36-25A-9(b), Ala.Code 1975, states the burden of proof that a plaintiff is required to meet at a preliminary hearing conducted pursuant to the Act. The plaintiff must “establish by a preponderance of the evidence that a meeting of [a] governmental body occurred and that each defendant attended the meeting.” Subsection (b) further requires that

“to establish a prima facie case the plaintiff must present substantial evidence of one or more of the following claims:
“(1) That the defendants disregarded the requirements for proper notice of the meeting pursuant to the applicable methods set forth in Section 36-25A-3.
“(2) That the defendants disregarded the provisions of this chapter during a meeting, other than during an executive session.
“(3) That the defendants voted to go into executive session and while in executive session the defendants discussed matters other than those subjects included in the motion to convene an executive session as required by Section 36-25A-7(b).
“(4) That, other than a claim under subdivisions (1) through (3), the defendants intentionally violated other provisions of this chapter.”

Section § 36-25A-9(c) provides, in pertinent part, that,

“[i]f the court finds that the plaintiff has met its initial burden of proof as required in subsection (b) at the preliminary hearing, the court shall establish a schedule for discovery and set the matter for a hearing on the merits.”

An appellate court reviews de novo a trial court’s determination as to whether a plaintiff presented substantial evidence of one or more claims under the Act at the preliminary hearing. Wilson v. City Council of Saraland, 72 So.3d 1190, 1193 (Ala.2011).

Discussion

I.

A single e-mail sent by one board member to the other board members, without more, does not constitute a “meeting” as defined in § 36-25A-2(6)a.3. That definition includes three elements: (1) a meeting must involve “a quorum of a governmental body or a quorum of a committee or a subcommittee of a governmental body,” (2) “during the which the members of the governmental body deliberate” (3) about “specific matters that, at the time of the exchange, the participating members expect to come before the body, committee, or subcommittee at a later date.” Keenum’s e-mail message satisfies the first and third elements, but not the second element. The “deliberation” component of a “meeting” is missing because Keenum’s e-mail message was a unilateral declaration of his ideas or opinions, not “[a]n exchange of information or ideas among” a quorum of board members concerning a specific matter that the members expected to be presented to the board for a decision. § 36-25A-2(l) and -2(6)a.S.

In Wood v. Battle Ground School District, 107 Wash.App. 550, 27 P.3d 1208 (2001), four members of a five-member school board met at the home of one of the members to discuss the new superintendent and his administrative assistant, Jennifer Wood, both of whom were, according to one of the board members, “overpaid, underperforming, and otherwise unqualified.” 107 WashApp. at 556, 27 P.3d at 1213. The four board members later exchanged e-mail correspondence as a followup to their discussion. The board eventually terminated Wood’s employment. Wood sued the board and the four board members, alleging claims of defamation and a violation of Washington’s Open Public Meetings Act (“OPMA”). The trial court dismissed the defamation claim and entered a summary judgment in favor of Wood on the OPMA claim.

The Washington Court of Appeals stated that, to enforce the provisions of the OPMA, a plaintiff must show “(1) that a ‘member’ of a governing body (2) attended a ‘meeting1 of that body (3) where ‘action’ was taken in violation of the OPMA, and (4) that the member had ‘knowledge’ that the meeting violated the OPMA.” 107 WashApp. at 558, 27 P.3d at 1214. The OPMA defines “action” as “ ‘the transaction of the official business of a public agency by a governing body including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions.’ ” 107 Wash.App. at 559, 27 P.3d at 1214 (quoting Wash. Rev. Code § 42.30.020(3)) (emphasis added). The court concluded that “the exchange of e-mails can constitute a ‘meeting’ ” but that “the mere use or passive receipt of e-mail does not automatically constitute a ‘meeting.’ ” 107 WashApp. at 564, 27 P.3d at 1217. The court explained that the facts of the case demonstrated more than the board members’ passive receipt of information by email:

“Wood has established a prima facie case of ‘meeting’ by e-mails. The ... email discussions involved a quorum of the five-member Board. For instance, on November 30, [board president] Sharp sent an e-mail to all Board members and another e-mail to three of the members; on December 1, Sharp again e-mailed all the Board members, attaching a response he had received from [board member] Striker about a matter they had discussed; next, on December 3, [board member] Kim e-mailed Sharp and copied three other Board members in response to Sharp’s earlier e-mail; and on December 5, Sharp again emailed all Board members.”

107 Wash.App. at 565, 27 P.3d at 1217-18. With respect to the “deliberation” component of a “meeting,” the Washington Court of Appeals held that “the active exchange of information and opinions in these emails, as opposed to the mere passive receipt of information, suggests a collective intent to deliberate and/or to discuss Board business.” 107 WashApp. at 566, 27 P.3d at 1218. Having determined that Wood had met the threshold requirement of establishing a “meeting” under the OPMA, the court nevertheless reversed the summary judgment in favor of Wood, holding that there were genuine issues of material fact as to whether the board members had exchanged e-mail messages with knowledge that such exchanges violated the OPMA. 107 Wash.App. at 555-56, 27 P.3d at 1217-18. See also Roberts v. City of Palmdale, 5 Cal.4th 363, 376, 853 P.2d 496, 503, 20 Cal.Rptr.2d 330, 337 (1993) (construing the “Brown Act,” California’s open-meetings law, and holding that a meeting implies “collective action ... not ... the passive receipt by individuals of their mail”); Johnston v. Metropolitan Gov’t of Nashville, 320 S.W.3d 299, 812 (Tenn.Ct.App.2009) (stating that e-mail exchanges between metropolitan council members, in which “members are clearly-weighing arguments for and against [a proposed zoning measure].... [and which were] copied to all Council members, mirror the type of debate and reciprocal attempts at persuasion that would be expected to take place at a Council meeting, in the presence of the public and the Council as a whole,” and concluding that the e-mails were “ ‘electronic communication ... used to ... deliberate public business in circumvention of the spirit or requirements’ of the Open Meetings Act. [Tenn.Code Ann.] § 8^4-102(c) (2002)”). See generally John F. O’Connor & Michael J. Baratz, Some Assembly Required: The Application of State Open Meeting Laws to Email Correspondence, 12 Geo. Mason L.Rev. 719 (2004).

II.

The trial court acted within the limits of its discretion in denying Lambert’s late amendment to the complaint.

“ ‘[U]ndue delay in filing an amendment, when it could have been filed earlier based on the information available or discoverable, is in itself ground for denying an amendment.’ Puckett, Taul & Underwood, Inc. v. Schreiber Corp., 551 So.2d 979, 984 (Ala.1989) (emphasis added). ‘[I]f the court determines ... that a party has had sufficient opportunity to state a claim ... but has failed to do so, leave to amend may be properly denied.’ Walker v. Traughber, 351 So.2d 917, 922 (Ala.Civ.App.1977) (quoted with approval in Stallings v. Angelica Uniform Co., 388 So.2d [942,] 947 [ (Ala.1980) ]).”

Todd v. Kelley, 783 So.2d 31, 36-37 (Ala. Civ.App.2000).

Conclusion

Keenum’s e-mail message to the other board members was the only evidence Lambert presented at the preliminary hearing. That communication was a unilateral expression of Keenum’s ideas or opinions concerning a specific matter that the members expected to be presented to the Board for a decision — not “[a]n exchange of information or ideas among” a quorum of board members, § 36-25A-2(l), and not, therefore, a “meeting” as contemplated by § 36-25A-2(6)a.3. Accordingly, Lambert failed to meet his initial burden of proof at the preliminary hearing. In addition, the trial court did not act outside the limits of its discretion in disallowing Lambert’s untimely amendment to the complaint.

The judgment of the Limestone Circuit Court is affirmed.

AFFIRMED.

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

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