author: SHAW, Justice.

text:
    Jeff SNIDER, as administrator of the estate of Thelma June Smith Snider, deceased v. Marquita S. MORGAN, as executrix of the estate of Troy Ray Snider, deceased, et al.
    1101535.
    Supreme Court of Alabama.
    Nov. 30, 2012.

      W. Brad English and Emily A. Jones of Maynard, Cooper & Gale, P.C., Huntsville, for appellant.
    Rodney L. Edmondson and Lea L. Mosley of McLaughlin & Edmondson, LLC, Guntersville, for appellees.
   SHAW, Justice.

Jeff Snider (“Jeff’), as administrator of the estate of Thelma June Smith Snider (“Thelma”), deceased, the plaintiff below, appeals from the trial court’s dismissal of his complaint against Marquita S. Morgan (“Morgan”), both as executrix of the estate of Troy Ray Snider (“Troy”), deceased, and on behalf of the estate of Harold Snider (“Harold”), deceased, and First Bank of Boaz (“First Bank”), the defendants below, for failure to state a claim upon which relief could be granted. We affirm in part, reverse in part, and remand.

Facts and Procedural History

In October 1998, Thelma, the mother of Troy and Harold and the grandmother of Jeff and Morgan, executed a “General Power of Attorney” naming Troy and Harold her attorneys-in-fact. That document specifically provided that the enumerated powers could be performed by either Troy or Harold and that each was not required “to act in union with the other.” Thelma died intestate on March 13, 2006. Troy died testate in June 2009. In September 2009, Jeff obtained letters of administration naming him administrator of Thelma’s estate. In April 2010, Morgan obtained letters testamentary naming her executrix of Troy’s estate. Harold died, presumably testate, see infra note 5, in July 2010.

In February 2011, Jeff sued Morgan, as executrix of Troy’s estate; Harold’s estate; and First Bank. Jeffs complaint alleged that, before Thelma’s death, which was purportedly preceded by her declining physical and mental health resulting in her incompetency, Troy and Harold had “seized control of [Thelma’s] assets and used them to their own benefit.” The complaint specifically referenced a purported loan of $46,000 to Troy in January 1988 from Thelma and her husband, James F. Snider, pursuant to which Thelma and James allegedly obtained a mortgage on real property Troy owned. It further alleged that, in May 2002, Harold, acting as Thelma’s alleged “attorney-in-fact,” had executed a release recorded in the Marshall County Probate Court acknowledging “full payment” of the accompanying indebtedness, satisfying the mortgage, and releasing Troy from further obligation thereon. As a result of the foregoing, and because, according to Jeffs complaint, “the Loan had not been repaid” at the time of the aforementioned release, Jeff filed, on behalf of Thelma’s estate, a $46,000 claim against Troy’s estate, seeking “repayment of the Loan” plus interest as well as the repayment of “other monies wrongfully obtained from Thelma ... by Troy....”

Contending both that Thelma was incompetent at the time the release was executed and that Troy’s loan had not been repaid at the time of the release, Jeffs complaint, as subsequently amended, asserted a breach-of-contract claim against Harold’s estate (count I), alleging that Harold had breached his contractual duties to Thelma by “us[ing] his purported powers as [Thelma’s] purported attorney-in-fact to act contrary to [Thelma’s] best interests” and seeking appointment of an administrator ad litem of Harold’s estate; asserted a breach-of-contract claim against Troy’s estate (count II), alleging that Troy breached an express or implied contract to repay the purported loan of $46,000; asserted an unjust-enrichment claim against both Troy’s estate and Harold’s estate (count III) based on Troy and Harold’s alleged knowing acceptance and enjoyment of Thelma’s money and assets without compensation to Thelma, “including without limitation,” Troy’s alleged wrongful failure to repay the $46,000 loan; asserted a claim labeled “money had and received” against Troy’s estate (count IV) based on Troy’s alleged “enjoy[ment] of the benefit of the loan without repaying same”; and asserted a claim for declaratory relief (count V), seeking, among other relief, a declaration voiding the release executed by Harold, restoration of the mortgage, and a declaration of entitlement to full repayment of the outstanding loan balance by Troy’s estate, as well as a declaration as to the priority of Thelma’s mortgage over the subsequent mortgage of First Bank.

Morgan moved to dismiss Jeffs complaint. Specifically, Morgan argued that the breach-of-contract claim against Troy’s estate (count II), the unjust-enrichment claim (count III), and the money-had-and-received claim (count IV) were due to be dismissed under the “rule of repose.” See, e.g., American Gen. Life & Accident Ins. Co. v. Underwood, 886 So.2d 807, 812 (Ala. 2004) (“The common-law rule of repose, which is an affirmative defense, ... ‘bars actions that have not been commenced within 20 years from the time they could have been commenced.’ ”). . She further contended, among other . things, that counts I through IV against Troy’s estate and counts I and III against Harold’s estate were barred by their respective statutes of limitations. Morgan attached, as an exhibit to her dismissal motion, a copy of the verified claim Jeff had filed in Troy’s estate proceedings.

Over Jeffs opposition, and without stating the reasons for its decision, the trial court granted Morgan’s dismissal motion, dismissing the claims against Troy's estate and Harold’s estate. Jeff subsequently filed a motion asking the trial court to “reconsider” that ruling (hereinafter referred to as a “motion to reconsider”), which the trial court denied, stating:

“The factual allegations [Jeff] makes in his complaint, viewed in a light most favorable to [Jeff], [do] not allege the existence of any promissory note that would have secured the mortgage. It is interesting that the ‘loan’ was to be repaid over a period of 30 years and [Jeff] claims that created a contract that the breach thereof would make the rule of repose inapplicable. Also, he claims the acts complained of would also not be outside the statute of limitations.
“Considering the allegations in a light most favorable to [Jeff], the Court finds the 20 year rule of repose applies to any mortgage, even one secured by a note that provides for payment over a period of 30 years because there is no allegation that there was a payment made within the 20 year period that would toll the rule of repose (and that also assumes the existence of a promissory note, not pled, that provides for such payment terms). The only element to the rule of repose is time.”

Thereafter, First Bank sought and obtained its own dismissal with prejudice from the case in consideration of the fact that it had been named as a party only as a result of its mortgage interest in Troy’s real property.

Standard of Review

In their briefs to this Court, the parties disagree as to the applicable standard of review. Morgan and First Bank appear to contend that their motions to dismiss were converted to motions for a summary judgment because matters outside the pleadings were submitted, and the trial court failed to exclude those matters. See Rule 12(b), Ala. R. Civ. P. (“If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule- 56.... ”). Morgan’s motion to dismiss included as an exhibit a copy of the verified statement of claim that Jeff had filed against Troy’s estate. Similarly, Jeffs response in opposition to that motion included both the statement of claim and the power of attorney. Nonetheless, the motions to dismiss were not converted to motions for a summary judgment, because the exhibits set out above were specifically referenced in Jeffs complaint and, thus, were not matters outside the pleading. Donoghue v. American Nat’l Ins. Co., 838 So.2d 1032, 1035 (Ala. 2002) (adopting the rule “precluding conversion when the exhibits in question are referred to in, and are central to, the plaintiffs complaint”). See also Lewis v. First Tuskegee Bank, 964 So.2d 36, 39 n. 1 (Ala.Civ.App.2007) (“ ‘[D]oeuments attached to a motion to dismiss are considered a part of the pleadings if those documents were specifically referred to in the plaintiffs complaint and are central to the claim being brought.” ’ (quoting Banks, Finley, White & Co. v. Wright, 864 So.2d 324, 327 (Ala.Civ.App.2001))).

Morgan and First Bank allege that Jeffs motion to reconsider included evidence outside the pleadings, namely an affidavit executed by Jeffs counsel and supporting documentation — including an email communication from Morgan’s and First Bank’s counsel dated May 11, 2011— aimed at establishing that Troy had made several substantial payments to the nursing home where Thelma resided prior to her death. However, Jeff made no showing that the evidence submitted in support of his motion was newly discovered, that is, that it was discovered after the trial court entered its judgment of dismissal, nor did he offer any other explanation for his delay in filing the supporting documents, which were clearly received by his attorney prior to the hearing on Morgan’s dismissal motion and the trial court’s dismissal. The parties present nothing indicating that Jeff could properly use a post-dismissal motion to reconsider to belatedly submit the materials he wished to provide to the trial court in opposition to the dismissal motion; therefore, the trial court could not, and apparently did not, consider the evidence when determining whether facts existed on which Jeff might ultimately prevail. Cf. Moore v. Glover, 501 So.2d 1187, 1189 (Ala.1986) (“[PJlaintiffs motion, with its attached exhibit and affidavit, sought to have the trial court reconsider its ... judgment in light of the new evidence (as opposed to ‘newly discovered evidence’) belatedly submitted by plaintiff.”). Because the trial court did not consider, and could not have considered, the untimely materials attached to Jeffs motion to reconsider, Morgan’s motion to dismiss, which had already been granted, did not convert to a motion for a summary judgment, and the appropriate standard of review is that applicable to a Rule 12(b) dismissal:

“ ‘On appeal, a dismissal is not entitled to a presumption of correctness. The appropriate standard of review under Rule 12(b)(6) is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [him] to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he] may possibly prevail. We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim, that would entitle the plaintiff to relief.’
“Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993) (citations omitted).”

Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784, 791 (Ala.2007) (emphasis added).

Discussion

I. Rule of Repose

Jeffs primary claim on appeal, in light of the trial court’s apparent dismissal of his claims based solely on the application of the rule of repose, is that, when the allegations of his complaint are viewed in the light most favorable to him, he has alleged facts demonstrating “that the actions or omissions which form the basis of this suit occurred within twenty ... years of the [filing] date of [that] complaint.” (Jeffs brief, at p. 14.) More specifically, Jeff argues that his complaint alleged solely that the loan to Troy had not been repaid, omitting allegations “as to. the terms of repayment, any partial payment or alternate payment arrangements, all of which would defeat the application of the rule of repose.” (Jeffs brief, at p. 16.)

As the trial court noted in its order denying Jeffs motion to reconsider, it apparently construed the complaint’s silence in that regard as Jeffs failure to allege any payment by Troy subsequent to the original loan date that would have tolled the rule of repose. The trial court apparently further concluded, despite the clear reference to the corresponding note and the terms of repayment included on the face of the copy of the mortgage attached to Jeffs amended complaint, that Jeff had failed to plead the existence of an agreement providing for an extended repayment period that might have also defeated the rule of repose. Those constructions appear to be contrary to the applicable standard, which requires that the allegations of the complaint be construed in Jeffs favor. See Lloyd Noland, supra.

With regard to the application of the rule of repose, we explained in Underwood, supra:

“The common-law rule of repose, which is an affirmative defense, Rector v. Better Houses, Inc., 820 So.2d 75, 78 (Ala.2001), ‘bars actions that have not been commenced within 20 years from the time they could have been commenced.’ Tierce v. Ellis, 624 So.2d 553, 554 (Ala.1998). The rule of repose ‘is not affected by the circumstances of the situation, by personal disabilities, or by whether prejudice has resulted or evidence [has been] obscured.’ Boshell v. Keith, 418 So.2d 89, 91 (Ala.1982). ‘Lack of notice is not sufficient to avert the application of the [rule of repose].’ Ballenger v. Liberty Nat’l Life Ins. Co., 271 Ala. 318, 322, 123 So.2d 166, 169 (1960); accord Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758, 764 (Ala. 2002), and Ex parte Liberty Nat’l Life Ins. Co., 858 So.2d 950, 957-59 (Ala. 2003) (Johnstone, J., dissenting). ‘[T]he only element of the rule of repose is time.’ Boshell, 418 So.2d at 91.
“ ‘The only circumstance that will stay the running of the 20-year period of repose is a recognition of the existence of the claimant’s right by the party defending against the claim.’ Boshell, 418 So.2d at 92. The recognition must be distinct. Ballenger, 271 Ala. at 323, 123 So.2d at 169. Such a recognition will restart the running of the 20-year period. Hendley v. First Nat’l Bank of Huntsville, 234 Ala. 535, 537, 176 So. 348, 350 (1937). For example, a partial payment on a mortgage debt is sufficient recognition by the mortgagor of the lien of the mortgage to start a new 20-year repose period running on the mortgagee’s claims under the mortgage. Hend-ley, supra. Likewise, a statement in a deed that the property conveyed by the deed is subject to a mortgage is a sufficient recognition of the lien of the mortgage to start a new 20-year repose period running on the mortgagee’s right to enforce the lien. Braun v. Pettyjohn, 176 Ala. 592, 594-95, 58 So. 907, 908 (1912).
“The rule of repose begins running on a claim as soon as all of the essential elements of that claim coexist so that the plaintiff could validly file suit. Spain v. Brown & Williamson Tobacco Corp., 872 So.2d 101, 129 (2003) (Johnstone, J., writing specially).
“ ‘In some instances, [the first point in time when all of the essential elements of a claim first coexist so that the plaintiff could validly sue and, therefore, the point in time when the rule of repose begins to run] may be the same as the date of the “accrual” of a claim. However, ... repose does not depend on “accrual” because the concept of accrual sometimes incorporates other factors, such as notice, knowledge, or discovery. For example, see Ala.Code 1975, § 6-2-3 (providing that a fraud claim does not accrue “until the discovery by the aggrieved party of the fact constituting the fraud”).’
“Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d at 764 n. 2. A suit on a tort claim may not be commenced until the defendant’s tortious act proximately causes the plaintiff to suffer an actual injury.1 Stephens v. Creel, 429 So.2d 278, 280-83 (Ala.1983). If a plaintiff’s actual injury resulting from a tort is the payment of premiums for an insurance policy, the payment of the first premium for the policy establishes the element of damage essential to a claim for the tort. Boswell v. Liberty Nat’l Life Ins. Co., 643 So.2d 580 (Ala.1994), and Donoghue v. American Nat’l Ins. Co., 838 So.2d 1032 (Ala.2002). On claims [of] unjust enrichment and money had and received, a plaintiff may commence a suit as soon as the defendant receives money and the circumstances imply the obligation to restore it. See Mutual Bldg. & Loan Ass’n v. Watson, 226 Ala. 526, 528, 147 So. 817, 817 (1933) (‘An action for money had and received is one in assumpsit based upon a promise to repay implied by law....’) ....
A suit on a breach-of-contract claim, on the other hand, may be commenced as soon as the defendant breaches the contract, regardless of whether the plaintiff has suffered an actual injury. Stephens v. Creel, 429 So.2d 278 (Ala.1983)....”

886 So.2d at 812-13.

As set out above, dismissal for failure to state a claim pursuant to Rule 12(b)(6) is appropriate only “when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.” Altrust Fin. Servs., Inc. v. Adams, 76 So.3d 228, 235 (Ala.2011). Thus, in order to survive a Rule 12(b)(6) motion based on the application of the rule of repose, Jeffs complaint only had to contain factual allegations supporting the “presum[ption] that the first missed payment occurred within twenty ... years of the date of [the] complaint.” (Jeffs brief, at p. 17.)

Here, Jeffs complaint alleges that Troy “fail[ed] to repay,” as promised, a purported loan, which, according to the attached mortgage, was reflected in a corresponding promissory note due and payable over a 30-year period. As Jeff correctly contends, his complaint merely alleged Troy’s default — a precursor to an action being filed against Troy by Thelma and James to recover on the underlying debt — not a specific date on which that default purportedly occurred. We agree, as Jeff also argues, that the trial court may not merely “presume that the first missed payment [did not] occur[ ] within twenty ... years of the ... complaint.” (Jeffs brief, at p. 17.) Further, Jeff includes in his brief to this Court authority establishing that any payment Troy made after an initial event of default would have restarted the repose period. See Underwood, 886 So.2d at 812 (“[A] partial payment on a mortgage debt is sufficient recognition by the mortgagor of the lien of the mortgage to start a new 20-year repose period running on the mortgagee’s claims under the mortgage.”).

Suffice it to say, we decline to conclude that Jeffs failure to allege a specific default date will support the trial court’s conclusion that no payment was ever made and applied to the outstanding loan balance. Mobile Infirmary v. Delchamps, 642 So.2d 954, 958 (Ala.1994) (“[T]he fact that [the plaintiff] did not allege the date when she first suffered bone degeneration in her jaw is not a ground for a dismissal under Rule 12(b)(6), Ala. R. Civ. P.”). Construing, as we must, the allegations of Jeffs complaint in his favor, there are facts, namely Troy’s payment history, that, assuming Jeff is able to establish them, would both defeat the rule of repose and entitle Jeff, on behalf of Thelma’s estate, to relief.

In reaching that conclusion, we are mindful of Jeffs simultaneous demand, via the proof of claim filed against Troy’s estate, for repayment of the entire “indebtedness reflected by the Mortgage,” which, the claim asserted, “remain[ed] due and owing.” Were we required to view that allegation in the light most favorable to the movants, it might support the trial court’s judgment. However, the applicable standard dictates a different result:

“When the sufficiency of a complaint is at issue, this Court will liberally construe the complaint in favor of stating a claim for relief. ‘Dismissals under Rule 12(b)(6) should be granted sparingly, and such a dismissal is proper only when it appears beyond a doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him or her to relief.’ Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986). ‘ “ ‘Where a [Rule] 12(b)(6) motion has been granted and this Court is called upon to review the dismissal of the complaint, we must examine the allegations contained therein and construe them so as to resolve all doubts concerning the sufficiency of the complaint in favor of the plaintiff.’ ” ’ Boswell v. Liberty Nat’l Life Ins. Co., 643 So.2d 580, 581 (AIa.1994), quoting Grant v. Butler, 590 So.2d 254, 255 (Ala. 1991), quoting in turn Greene County Bd. of Educ. v. Bailey, 586 So.2d 893, 897-98 (Ala.1991).”

Radenhausen v. Doss, 819 So.2d 616, 619-20 (Ala.2001).

In considering Rule 12(b)(6) dismissals, this Court has further observed:

“It is axiomatic that a 12(b)(6) motion should ‘seldom be granted and should only be granted when “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,” ’ Jeannie’s Grocery v. Baldwin County Electric Membership Corporation, 331 So.2d 665, 667 (Ala.1976). Upon consideration of the motion, which goes only to the face of the complaint, the allegations are to be considered in light favorable to the plaintiff and doubts resolved in his favor, Pruitt v. Pruitt, 343 So.2d 495 (Ala.1977); if the court doubts plaintiffs recovery, it should deny the motion, Trabits v. First National Bank of Mobile, 295 Ala. 85, 323 So.2d 353 (1975).”

Sims v. Lewis, 374 So.2d 298, 303 (Ala.1979).

Here, Thelma and James did not have a viable and cognizable claim against Troy until Troy defaulted on the mortgage debt, if indeed he did. Although the proof of claim seeks the full amount of the loan, we do not see that as foreclosing the possibility, as Jeff argues on appeal, that Troy may have made payments and that a lesser amount was actually due. Because the 20-year common-law rule of repose is premised upon a preexisting right to assert a claim and because Jeff may possibly demonstrate a factual scenario where default and the resulting right to sue occurred within 20 years of the filing date of the underlying suit, the trial court erred in simply dismissing Jeffs complaint in its entirety based on the date of the original mortgage and the presumed application of the rule of repose. Further, because neither Morgan’s Rule 12(b)(6) motion nor First Bank’s subsequent motion for dismissal purported to assert any independent ground justifying a dismissal of Jeffs claims against First Bank, and because those claims are intertwined with Jeffs mortgage-based claims, the trial court erred in dismissing Jeffs claims against First Bank.

II. Statutes of Limitations

To the extent that the trial court’s dismissal may have been premised, in part, on the alternative statute-of-limitations ground included in Morgan’s dismissal motion, Jeff disputes that the applicable statutes of limitations bar his claims. As indicated by its order denying Jeffs post-dismissal motion to reconsider, the trial court does not appear to have considered this alternative argument in dismissing Jeffs complaint. However, given the well established principle that “ ‘[t]his Court may affirm a trial court’s judgment on “any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected, by the trial court,” ’ ” Warren v. Hooper, 984 So.2d 1118, 1121 (Ala.2007) (quoting General Motors Corp. v. Stokes Chevrolet, Inc., 885 So.2d 119, 124 (Ala.2003), quoting in turn Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003)), we must examine the merits of each claim in light of the alternative statute-of-limitations ground.

A. Breach-of-Contract Claim Against Harold’s Estate (Count I)

Count I of Jeffs complaint alleged a breach-of-contract claim against Harold’s estate based on Harold’s purported misuse of the powers granted him under the power of attorney executed by Thelma. More specifically, Jeff generally contended that, in acting contrary to Thelma’s best interests, Harold breached that power-of-attorney agreement. Notably, the language included in count I of Jeffs complaint does not specifically refer to the circumstances surrounding the release of the indebtedness and satisfaction of the mortgage, nor does it appear to limit Harold’s complained-of conduct to any one specific event or period of time while he was serving as Thelma’s attorney-in-fact. Further, count I specifically incorporated earlier factual allegations set out in Jeffs complaint, including the contention that “Troy ... and Harold ... seized control of Thelma[’s] ... assets and used them to their own benefit” during the last 10 years of Thelma’s life, i.e., from approximately March 1996 until March 2006.

Assuming, as we must under the applicable standard set out above, that Jeff can prove the allegation in his complaint that Harold received consideration in exchange for acting as Thelma’s attorney-in-fact, there may be circumstances under which Jeff can demonstrate that a valid contract was, in fact, created between Thelma and Harold. Compare Smith v. Wachovia Bank, N.A., 33 So.3d 1191, 1200 (Ala.2009) (holding that “[bjecause no promise or performance was extended to the wife by the husband for her performance under the power of attorney,” “the undertaking was gratuitous in nature and did not create any legally enforceable contract right”). Further, pursuant to its terms, the power of attorney Thelma executed was intended to be “a durable power of attorney” and to remain in full force and effect until terminated by a subsequent writing executed by Thelma. Because nothing in the record suggests otherwise, we may presume that the power of attorney remained in effect and that Harold continued to serve as Thelma’s attorney-in-fact until Thelma’s death in March 2006.

The parties agree that an action alleging breach of contract is subject to the six-year statute of limitations found in § 6-2-34, Ala.Code 1975. Thus, even assuming that the power of attorney was not a contract under seal and thus subject to the more forgiving 10-year statute of limitations provided in § 6-2-33, Ala.Code 1975, Jeff clearly filed his complaint in February 2011, less than 5 years after the power of attorney terminated in 2006. Construing the allegations of Jeffs complaint in his favor, as we must, we conclude that he may be able to prove a set of facts under which his claim against Harold’s estate based upon Harold’s purported breach of the power of attorney providing control of Thelma’s assets is not barred by the running of the limitations period. Therefore, the statute-of-limitations ground would not support dismissal of count I under Rule 12(b)(6).

B. Breach-of-Contract Claim Against Troy’s Estate (Count II)

Count II of Jeffs complaint alleged a breach-of-contract claim against Troy’s- estate based on Troy’s purported failure to repay the $46,000 loan from Thelma and James. Although Jeff failed to plead the existence of a note and specifically acknowledges, in keeping with the trial court’s findings, that he has not located the installment note referenced in the resulting mortgage, that acknowledgment does not preclude the possibility that one does exist or that Jeff could otherwise demonstrate a set of facts entitling him to relief on this claim as well. In fact, although Jeff does not state in his complaint that a “note”- exists, he does plead a contract, the terms of which are supported by the mortgage attached to and incorporated into his complaint.

Further, Jeff cites authority establishing that, in Alabama, “the statute of limitations does not begin to run against the payee until the last installment is due and unpaid.” Williams v. Williams, 497 So.2d 481, 483 (Ala.1986). Thus, assuming that Jeff can invalidate Harold’s release and demonstrate a 30-year installment debt, Jeffs complaint was filed before the last installment would have fallen due in 2018. Although Jeff may not ultimately prevail as to this issue, at present our sole concern is whether, under the facts alleged, he might ultimately be able to do so. Therefore, the trial court erred to the extent that it relied on the applicable statute of limitations in dismissing this claim.

C. Unjust-Enrichment/Restitution Claims Against Harold’s Estate and Troy’s Estate (Count III)

Initially, we note that count III of Jeffs complaint asserted unjust-enrichment claims against both Harold’s estate and Troy’s estate based on the general allegation that Harold and Troy “knowingly accepted the enjoyment and benefit of Thelma[’s] ... money and assets, including without limitation the Loan, without compensating [Thelma] in any way.” On appeal, however, Jeff appears to limit his claim of alleged unjust enrichment solely to Troy’s estate. (Jeffs brief, at p. 27.) Jeff makes no argument that his claim seeks damages against Harold’s estate for unjust enrichment; therefore, Jeff has waived any argument concerning the alleged unjust enrichment of Harold’s estate, and we affirm the trial court’s dismissal insofar as it relates to that claim. Tucker v. Cullmcunr-Jefferson Counties Gas Disk, 864 So.2d 317, 319 (Ala.2003) (stating that issues not raised and argued in brief are waived).

Further, the above-quoted language from Jeffs complaint both specifically references the loan and suggests a broader, more general misuse of Thelma’s assets by both Troy and Harold during her alleged incapacity spanning the last 10 years of her life, i.e., until her death in 2006. In his brief, however, Jeffs own interpretation of his complaint limits his claim to Troy’s alleged failure to repay the loan “in monthly installments over a period of thirty (30) years, beginning in 1988 and ending in 2018.” (Jeffs brief, at p. 27.) In performing our statute-of-limitations analysis, we, therefore, limit our analysis solely to the loan-based assertions in Jeffs complaint.

The parties disagree as to the applicable statute of limitations. Specifically, without including a citation to supporting authority, Jeff maintains that the six-year statute of limitations set out in § 6-2-34(9), Ala. Code 1975, applies to implied contracts and thus governs his unjust-enrichment claim. Contrary to that position, Morgan and First Bank cite nonbinding authority in support of the proposition that, depending on the source of the alleged unjust enrichment, either the two-year statute of limitations applicable to tort-based actions or the six-year statute of limitations applicable to contract-based claims may apply. See Auburn Univ. v. International Bus. Machs. Corp.-, 716 F.Supp.2d 1114, 1118 (M.D.Ala.2010) (“[S]ome unjust-enrichment claims, such as claims for enrichment flowing from a breach of the corporate fiduciary duties of loyalty and due care, clearly arise from tort injuries, while other unjust-enrichment claims, such as claims for enrichment flowing from the rendering of substantial performance on a merely technically invalid contract, clearly arise from contract injuries.”).

The court in Auburn University observed that “Alabama state courts have not decided whether unjust-enrichment claims are tort claims or implied-contract claims, much less which statute of limitations applies to such claims.” 716 F.Supp.2d at 1117. Our research similarly confirms that there is a distinct absence of authority definitively stating the statute of limitations applicable to an unjust-enrichment claim. We need not, however, decide that issue here.

Jeff argues that Troy’s estate was unjustly enriched each time a payment on the mortgage came due and Troy failed to make that payment. We agree. As set out above, there are circumstances alleged by Jeff that could establish that payments on the note secured by the mortgage were due over a 30-year period and that the indebtedness was fraudulently and/or prematurely released. Assuming that Jeff successfully demonstrates those facts, payments on the note remain due at present and Troy’s estate continues to be unjustly enriched by its alleged failure to pay. Therefore, construing the facts in favor of Jeff, we conclude that he may be able to demonstrate continuing unjust enrichment by Troy’s estate, which prevents his claim from being barred by application of even the two-year statute of limitations urged by Morgan and First Bank. Thus, the alternative ground included in Morgan’s motion similarly would not have supported the trial court’s dismissal of Jeffs unjust-enrichment claim against Troy’s estate.

D. “Money Had and Received” Claims Against Troy’s Estate

Jeffs complaint asserted, solely against Troy’s estate, a claim alleging “money had and received” based on Troy’s alleged “enjoy[ment] of the benefit of the loan without repaying the same.” As mentioned previously, with regard to “claims for ... money had and received, a plaintiff may commence a suit as soon as the defendant receives money and the circumstances imply the obligation to restore it.” Underwood, 886 So.2d at 813. See also Rice v. Tuscaloosa County, 242 Ala. 62, 67, 4 So.2d 497, 500 (1941) (holding that, as to a claim of money had and received, “[the] right of action accrues, and the statute of limitations begins to run, immediately upon the payment” and further citing the “many similar holdings supporting the view that the claim accrued on the date the money was paid” (emphasis omitted)); American Bonding Co. of Baltimore v. Fourth Nat’l Bank of Montgomery, 205 Ala. 652, 656, 88 So. 888, 842 (1921) (“Upon the receipt of this money by the bank an action arose in favor of said Estelle Mane-gold for money had and received, which action is barred in six years from the date of the accrual thereof.”).

The parties correctly agree that this particular claim, which clearly seeks “the recovery of money upon a loan,” is afforded a six-year limitations period under § 6-2-84(5), Ala.Code 1975. See also Johnson v. Life Ins. Co. of Alabama, 581 So.2d 438, 443 (Ala.1991). Morgan and First Bank argue, as to the money-had-and-reeeived claim, both that “[t]here could be no clearer starting date for the statute of limitations ... than the date of the mortgage in January of 1988” and that “the statute of limitations should have begin [sic] running on the first missed mortgage payment.” (Appellees’ brief, at pp. 32, 33.) Under either theory, the applicable statute of limitations appears to bar Jeff’s prosecution of the claim for money had and received and justifies its dismissal. Specifically, assuming that the statute of limitations began to run at the date of the mortgage, it expired in January 1994 — six years after Troy initially received the money from Thelma and James in January 1988. Alternatively, given that the alleged facts will not logically support the assumption that Troy continued making mortgage payments after the release of the indebtedness in 2002, and because this claim is not contract-reliant, then the statute of limitations expired in 2008 — six years after the release. Thus, regardless of which of the two alternate theories is applied, the statute would have run as to this particular claim well before the filing date of the underlying complaint.

Conclusion

In consideration of the foregoing, we affirm the Rule 12(b)(6) dismissal of Jeffs claim against Troy’s estate for money had and received (count IV) and the portion of count III representing Jeffs unjust-enrichment claim against Harold’s estate. The trial court’s judgment of dismissal of the remaining counts, however, must be reversed and the cause remanded for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

MALONE, C.J., and STUART, PARKER, and WISE, JJ., concur.

      . Although Morgan's motion sought dismissal "pursuant to 12(b)[, Ala. R. Civ. P.],” without specifying any particular subsection thereof, given the nature of the allegations therein and the trial court’s treatment of the motion, we construe it as having been made pursuant to Rule 12(b)(6), for "failure to state a claim upon which relief can be granted.” See 1 Moore’s Federal Rules Pamphlet § 12.4[5][d], p. 186 (2010) ("[T]he purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of the pleader’s claims for relief.... ”); Camp-ton v. Miller, 19 So.3d 245, 249 (Ala.Civ.App. 2009) ("Our caselaw is clear ... that it is the substance of a motion, not its nomenclature, that is controlling; ‘the relief sought in a motion determines how to treat the motion.’ ” (quoting Allied Prods. Corp. v. Thomas, 954 So.2d 588, 589 n. 3 (Ala.Civ.App.2006))).

      . It is unclear from the record whether James was deceased at the time the underlying proceeding was initiated; however, the record is devoid of any mention of either James or his estate as a party; therefore, it appears that James predeceased Thelma.

      . A copy of the mortgage, which had been duly recorded with the Marshall County Probate Court, was attached to Jeff's complaint. The mortgage specifically referenced a "promissory note bearing even date with this instrument ... due and payable in (360) consecutive monthly installments of $345.66 each beginning 3/5/88.... ”

      . Following Harold’s release of the indebtedness, Troy subsequently pledged the same property pledged as security for the $46,000 loan as collateral for a $51,994.53 loan he obtained from First Bank.

      . In their brief to this Court, Morgan and . First Bank represent that, apparently unbeknownst to Jeff, Morgan was also appointed executrix of Harold’s estate, and Harold’s will has since been probated.

      . Actually, Jeff's amended complaint included two counts labeled "Count Four.” Because his claim for declaratory relief was the second such claim, and to avoid confusion, we have designated that count as "count V" for purposes of this opinion.

      . An affidavit by Jeff’s counsel, which accompanied Jeff’s motion to reconsider, did represent that "[he] did not retrieve the ... email for several days thereafter"; however, the affidavit failed to allege a specific date on which Jeff's counsel did retrieve the e-mail and clearly did not allege that it was not retrieved within sufficient time to have been submitted before the trial court entered its judgment of dismissal.

      . To the extent that Jeff argues that the evidence accompanying his post-dismissal motion to reconsider potentially established some type of alternate payment arrangement, which tolled the rule-of-repose period, the trial court could not have properly considered that evidence. See supra note 7.

      . Because the acts or omissions giving rise to counts I through IV of Jeff's complaint serve as the basis for Jeff’s request for declaratory relief in count V, we do not interpret count V as asserting an independent cause of action to which a separate statute of limitations would apply. We note that Morgan took a similar position in her dismissal motion.

      . To the extent that Jeff argues that the power of attorney was a contract under seal and thus governed by a 10-year statute of limitations and that he, thus, had 10 years from the date of the release of the indebtedness in 2002 — the sole breach event particularly described in, his complaint — to sue, we note, as do the parties, "that the guiding doctrine in determining whether a contract is sealed is the intent of the contracting parties.” K & C Dev. Corp. v. AmSouth Bank, N.A., 597 So.2d 671, 674 (Ala. 1992). Therefore, there seem to be facts alleged that, assuming Jeff can prove them, would support the application of a 10-year statute of limitations.

      . No party argues the existence of an acceleration clause or the potential effect of such a clause on Troy’s obligation under the note. Regardless, however, "Alabama cases have historically considered the optional acceleration clause to be for the benefit of the creditor, and have held that the debt does not mature for the purpose of the statute of limitations until the last installment is due and unpaid.” Williams, 497 So.2d at 482.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    S.W. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2111009.
    Court of Civil Appeals of Alabama.
    Dec. 14, 2012.
    Jason B. Tingle of The Tingle Law Firm, Birmingham, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Joshua J. Lane, asst. atty. gen., Department of Human Resources, for appellee.
   MOORE, Judge.

S.W. appeals from an order of the Jefferson Juvenile Court (“the juvenile court”) vacating its previous paternity adjudication relating to B.B. (“the child”) and dismissing S.W. as a party to the dependency proceedings regarding the child.

On January 17, 2012, the Jefferson County Department of Human Resources (“DHR”) filed a petition in the juvenile court alleging that the child was dependent. In its petition, DHR listed A.W. (“the mother”) as the mother of the child, but no father was listed. After a shelter-care hearing, the juvenile court entered an order on January 18, 2012, noting that the child had been placed with D.W., the alleged paternal aunt of the child, pursuant to a safety plan. The juvenile court also ordered that the “[pjutative father” and the child submit to DNA testing. After the first setting of an adjudication hearing, the juvenile court entered an order on March 28, 2012, stating that the mother and S.W. had stipulated that the DNA test results indicated that S.W. is the biological father of the child. The juvenile court ordered that DHR maintain legal custody of the child until the paternal aunt’s criminal-background check was completed and showed that she had no criminal record, at which time, the court ordered, she would receive custody of the child. The juvenile court further stated that, pending further orders, S.W. was to have no contact with the child. That same day, the juvenile court entered an order establishing S.W.’s paternity of the child. On June 15, 2012, S.W. filed a motion seeking specified visitation with the child.

After an adjudication hearing, the juvenile court entered an order on June 22, 2012, stating that DHR, the mother, and S.W. had stipulated to the admission of DHR’s court report, to the mother’s having reported to a DHR social worker that she had been married to “S.” when the child was born, and to the previous order establishing S.W.’s paternity being suspended pending further order. The juvenile court set aside its previous paternity adjudication as void based on the mother’s having been married to “S.” at the time the child was born. The juvenile court further concluded that S.W. was not a party to the case and relieved his attorney from further representation of S.W.

On July 3, 2012, S.W. and the child’s guardian ad litem filed a joint motion to alter, amend, or vacate the June 22, 2012, order to the extent that it vacated the juvenile court’s previous paternity adjudication. On July 10, 2012, the juvenile court entered an order denying the motion “at this time” and stating that DHR and counsel for the mother were to seek the mother and S.’s marriage certificate. On July 17, 2012, S.W. filed his notice of appeal.

We initially note that DHR has argued in its brief to this court that S.W.’s appeal must be dismissed because it is not from a final judgment. In J.W.K. v. Marshall County Department of Human Resources, 18 So.3d 956, 958 (Ala.Civ.App. 2009), this court reasoned: “In this case, the juvenile court’s denial of the mother’s request for a hearing did not adjudicate ‘all matters in controversy between the litigants’ in the underlying, ongoing dependency cases. Therefore, because the juvenile court’s order is not final, this court lacks jurisdiction to consider the mother’s appeal.” (Quoting Dabbs v. Four Tees, Inc., 984 So.2d 454, 456 (Ala.Civ.App.2007), quoting in turn Jewell v. Jackson & Whit-sitt Cotton Co., 331 So.2d 623, 625 (Ala. 1976)).

Similarly, in the present case, the juvenile court’s order setting aside the paternity adjudication and dismissing S.W. as a party to the dependency proceedings did not “adjudicate ‘all matters in controversy between the litigants’ in the underly-mg, ongoing dependency cases.” Id. Thus, “the juvenile court’s order is not final, [and] this court lacks jurisdiction to consider [S.W.’s] appeal.” Id. Accordingly, we dismiss S.W.’s appeal. Id.

S.W.’s motion to treat the appeal as a petition for a writ of mandamus is denied.

APPEAL DISMISSED.

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

      . "The proper means of seeking appellate review of an interlocutory order in this court is to petition for a writ of mandamus. See Ex parte C.L.J., 946 So.2d 880, 887 (Ala.Civ. App.2006) ('A petition for a writ of mandamus is the appropriate method for reviewing an interlocutory order.’); see also P.B. v. P.C., 946 So.2d 896 (Ala.Civ.App.2006) (recognizing that the proper method of review of pendente lite orders is by a petition for a writ of mandamus). The presumptively reasonable time within which to file a petition for a writ of mandamus is the time in which an appeal may be taken, i.e., [14] days [when the appeal is from a juvenile-court order, see Rule 4(a)(1)(E), Ala. R.App. P.]. Rule 21(a), Ala. R.App. P.; Ex parte Fiber Transp., L.L.C., 902 So.2d 98 (Ala.Civ. App.2004).”

        Norman v. Norman, 984 So.2d 427, 429 (Ala. Civ.App.2007).
      In this case, S.W. filed his notice of appeal more than 14 days after the juvenile court entered the June 22, 2012, order. Thus, ”[i]f [S.W.] had filed a petition for a writ of mandamus, it would have been filed outside the presumptively reasonable [14]-day period." Id. The motion to alter, amend, or vacate filed by S.W. and the guardian ad litem did not toll the presumptively reasonable time to file a petition for a writ of mandamus. Id.; see also Ex parte Onyx Waste Servs. of Florida, 979 So.2d 833, 834 (Ala.Civ.App.2007) (”[U]nlike a postjudgment motion following a final judgment, a motion to reconsider an interlocutory order does not toll the presumptively reasonable time period that a party has to petition an appellate court for a writ of mandamus.”). "Even if we were to treat [S.W.’s] appeal as a petition for a writ of mandamus, this court could not hear the matter because it was not timely filed.” Norman, 984 So.2d at 429.


text:
    William R. RICE III and Laura Rebecca Rice v. GROVE HILL HOMEOWNERS’ ASSOCIATION, INC.
    2110884.
    Court of Civil Appeals of Alabama.
    Dec. 14, 2012.

      Kenneth Jay Mendelsohn and Barbara Hamlin Agricola of Jemison & Mendel-sohn, P.C., Montgomery, for appellants.
    Kimberly D. White of Akridge & Balch, P.C., Auburn, for appellee.
   MOORE, Judge.

William R. Rice III and Laura Rebecca Rice appeal from a judgment of the Lee Circuit Court (“the trial court”) awarding attorney fees and costs in the amount of $18,284.96 to the Grove Hill Homeowners’ Association, Inc. (“the Association”). We affirm.

The parties have previously been before this court, first in Grove Hill Homeowners’ Association, Inc. v. Rice, 43 So.3d 609 (Ala.Civ.App.2010) (“Grove Hill I”), in which this court reversed a judgment of the trial court, in which the trial court had concluded that a driveway on- the Rices’ property complied with their subdivision’s restrictive covenants. This court held that the trial court had erred in finding that the Rices’ driveway did not violate the subdivision’s restrictive covenants, and we remanded the case for the trial court to consider whether the Association had carried its burden of proving the remaining elements necessary to obtain the permanent injunction it had requested. 43 So.3d at 615. Upon remand, the trial court entered a new judgment, again denying the Association the injunctive relief it had requested. The Association again appealed. See Grove Hill Homeowners’ Association, Inc. v. Rice, 90 So.3d 731 (Ala.Civ.App. 2011) (“Grove Hill II ”). In Grove Hill II, this court concluded that, because the Rices had had notice of the restrictive covenant that they breached, the Association was entitled to enforcement of that restrictive covenant and that the trial court had erred in declining to grant the permanent injunction requested by the Association; we reversed the trial court’s judgment and remanded the cause for the trial court to enter a judgment consistent with this court’s opinion. 90 So.3d at 740-41.

On remand from this court, the Association filed a motion for the entry of a judgment enjoining the Rices from maintaining a driveway on their property that did not comply with the subdivision’s restrictive covenants and requesting an award of $22,567.57 in costs and attorney fees. Attached to that motion was an itemized bill from the Association’s attorney. On March 15, 2012, the trial court entered a judgment in favor of the Association, enjoining the Rices from “installing, using, or maintaining any driveway” on their property that did not comply with the restrictive covenants of the subdivision; the judgment also stated, in pertinent part: “The Rices are granted leave to, on or before April 15, 2012, show cause why the Association’s request for attorney’s fees and costs in the amount of $22,567.57 should not be granted.” Also on March 15, 2012, the Association filed an amended motion to tax costs on appeal, attaching thereto an itemized and verified bill of costs. On April 16, 2012, the Rices filed a response to the order to show cause and an objection to the award of attorney fees. The Association filed a reply to that response on April 19, 2012.

On May 17, 2012, the trial court entered a judgment finding that the Rices “are obligated to pay the ... Association^] reasonable attorney’s fees and costs” and awarding the Association costs and attorney fees in the amount of $18,284.96. The Rices filed their notice of appeal to this court on June 15, 2012.

The Rices argue on appeal that the trial court exceeded its discretion by ordering them to pay the Association’s attorney fees because, they say, the amount was unreasonable and no evidence was submitted to substantiate the amount.

“[W]hile we have recognized that ‘the reasonableness of an award of attorney fees is within the discretion of the trial court, subject to correction only for an abuse of discretion,’ we have noted that when an appellate court reviews the award of an attorney fee ‘we must be able to discern from the record what factors the trial court considered in determining the amount of attorney fees.’ Lanier v. Moore-Handley, Inc., 575 So.2d 83, 85 (Ala.1991), citing Van Schaack v. AmSouth Bank, N.A., [530 So.2d 740 (Ala.1988) ] (emphasis added).
“ ‘We now turn to the question regarding the amount of attorney fees awarded. “The determination of whether an attorney fee is reasonable is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion.” Ex parte Edwards, 601 So.2d 82, 85 (Ala.1992). Our deference to the trial court in attorney-fee cases is based upon our recognition that the trial court, which has presided over the entire litigation, has a superior understanding of the factual questions that must be resolved in fee determinations. See Hensley v. Eck-erhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Nevertheless, the trial court’s order regarding an attorney fee must allow for meaningful review by articulating the decisions made, the reasons supporting those decisions, and the performance of the attorney-fee calculation. American Civil Liberties Union of Ga. v. Barnes, 168 F.3d 423, 427 (11th Cir.1999); see also Hensley, 461 U.S. at 437,103 S.Ct. 1933.’
“City of Bviningham v. Horn, 810 So.2d 667, 681-82 (Ala.2001). See also Lolley v. Citizens Bank, 494 So.2d 19 (Ala. 1986); Huntley v. Regions Bank, 807 So.2d 512 (Ala.2001); Ex parte Edwards, 591 So.2d 491, 493 (Ala.1990) (‘The trial court reduced the requested fee of $75,301.56 to $9,000.00. In doing so, the trial court made no findings of record as to why such a reduction was made. We are not in a position to determine if in fact the trial court abused its discretion in awarding a lesser fee than was requested without first knowing the court’s reason for doing so.’).”

Beal Bank, SSB v. Schilleci, 896 So.2d 395, 404 (Ala.2004).

We note first that, upon remand, a different circuit-court judge was assigned to the case than had presided over the trial and had entered the previous judgments that had been appealed in this case. The judgment awarding the Association costs and attorney fees states, in pertinent part:

“Upon review of the materials submitted by the Homeowners’ Association and analyzing the factors set forth in [Pee-bles] v. Miley, 43[9] So.2d 137 (Ala. 1983), the Court awards costs and attorney’s fees totalling Eighteen Thousand Two Hundred Eighty-Four and 96/100 Dollars ($18,284.96).”

The factors set forth in Peebles v. Miley, 439 So.2d 137 (Ala.1983), and referenced in the trial court’s judgment are restated in Van Schaack v. AmSouth Bank, N.A., 530 So.2d 740 (Ala.1988), and include:

“(1) the nature and value of the subject matter of the employment; (2) the learning, skill, and labor requisite to its proper discharge; (3) the time consumed; (4) the professional experience and reputation of the attorney; (5) the weight of his responsibilities; (6) the measure of success achieved; (7) the reasonable expenses incurred; (8) whether a fee is fixed or contingent; (9) the nature and length of a professional relationship; (10) the fee customarily charged in the locality for similar legal services; (11) the likelihood that a particular employment may preclude other employment; and (12) the time limitations imposed by the client or by the circumstances.”

530 So.2d at 749.

The Rices reference an e-mail sent by the Association’s attorney to the Rices’ attorney, which was attached as an exhibit to the Rices’ response and objection to the request for attorney fees and which states, in pertinent part: “It seems clear that your clients don’t understand the concept of covenants that run with the land. However, if they continue their present course, I can guarantee you they will get a full and expensive education on that topic.” The Rices assert that that statement evidences that the Association’s attorney intentionally inflated the attorney fees. The Rices also argue that the trial court erred in failing to explain how it determined the award of attorney fees.

The Association requested attorney fees in the amount of $22,567.57. Attached to that request, the Association submitted an itemized bill from its attorney totaling $10,581.22 for the period September 8, 2010, through February 24, 2012. The Association later submitted an amended motion to tax costs, attaching an itemized bill of costs totaling $1,026.41. In the Association’s reply to the Rices’ response to the trial court’s order to show cause, the Association asserted that, in addition to those amounts, the Association had submitted previous documents indicating that the Association had incurred costs and attorney fees in the amount of $12,036.35. This court reviewed the record in Grove Hill II and located documents evidencing fees and costs in the total amount of $12,036.35 for the period February 25, 2009, through April 28, 2010.

The trial court may rely on its own knowledge and experience in determining the value of the legal services performed and in setting the fee without entertaining evidence of the reasonableness of the fee. Spafford v. Crescent Credit Corp., 497 So.2d 160, 162 (Ala.Civ.App.1986). We conclude that, based on the documents submitted by the Association in the present case and in Grove Hill II, the trial court had before it sufficient evidence from which to determine the reasonableness of the fees requested. Additionally, the trial court stated that it had considered the factors in Peebles in calculating its award; thus, it is clear that the trial court’s consideration of those factors is what led to any discrepancy between the amount requested and the amount awarded. Accordingly, we conclude that the trial court did not err in its award of attorney fees to the Association.

The Rices also assert that “the trial court held no hearing to allow the Rices to cross-examine the reasonableness of the fee, as required by Alabama law.” We note that the Rices failed to request a hearing regarding the Association’s request for attorney fees. Moreover, the Rices fail to cite any authority for their assertion that a hearing was required, in contravention of Rule 28(a)(10), Ala. R. Civ. P.; thus, we decline to consider that argument. See Crouch v. Allen, 76 So.3d 264, 266 (Ala.Civ.App.2011).

The trial court’s judgment is affirmed.

AFFIRMED.

PITTMAN and THOMAS, JJ„ concur.

THOMPSON, P.J., and BRYAN, J., dissent, without writings.


author: PER CURIAM.

text:
    JIM SKINNER FORD, INC. v. John H. DAVIS. Department of Industrial Relations v. John H. Davis.
    2110859 and 2110863.
    Court of Civil Appeals of Alabama.
    Dec. 14, 2012.

      John Martin Galese and Cassandra Harris Kalupa of Galese & Ingram, P.C., Birmingham, for appellant Jim Skinner Ford, Inc.
    Joseph S. Ammons, gen. counsel, and Arthur F. Ray II, deputy gen. counsel, for appellants Alabama Department of Industrial Relations.
    John P. Graves, Birmingham, for appel-lee.
   PER CURIAM.

Jim Skinner Ford, Inc., and the Department of Industrial Relations (“DIR”) separately appeal from the circuit court’s judgment determining that John H. Davis did not voluntarily quit his employment and that he is entitled to unemployment-compensation benefits. We affirm.

Following the separation of his employment from Jim Skinner Ford, Davis applied with DIR for unemployment-compensation benefits. Davis was granted benefits, and Jim Skinner Ford appealed that decision to DIR’s Hearings and Appeals Division. Jim Skinner Ford asserted that Davis was disqualified from benefits because, it said, he voluntarily quit his employment without good cause. Following a telephone hearing, a hearing officer concluded that Davis was not entitled to benefits. Davis appealed that decision to the DIR’s Board of Appeals, which affirmed the decision to deny him benefits. Davis then appealed to the circuit court for a trial de novo, pursuant to § 25-4-95, Ala.Code 1975.

At trial, the parties disputed whether Davis had voluntarily quit his employment or whether Jim Skinner Ford had dismissed him. Section 25-4-78(2), Ala.Code 1975, provides for the disqualification of unemployment-compensation benefits if a claimant leaves work “voluntarily without good cause connected with such work.” The circuit court concluded that Jim Skinner Ford, as the employer, bore the burden of proving that Davis had voluntarily quit his employment. After hearing ore tenus testimony, the circuit court determined that Davis had not voluntarily quit his employment. Accordingly, because the parties did not otherwise dispute Davis’s eligibility for unemployment-compensation benefits, the circuit court concluded that Davis was entitled to benefits. Jim Skinner Ford and DIR appealed to this court, and we consolidated the appeals.

On appeal, Jim Skinner Ford and DIR first argue that the circuit court erred in concluding that Jim Skinner Ford, as the employer, bore the burden of proving that Davis was disqualified from unemployment-compensation benefits for voluntarily quitting work. In concluding that Jim Skinner Ford bore this burden, the circuit court relied on our supreme court’s recent decision in Ex parte Rogers, 68 So.Bd 773 (Ala.2010). In Ex parte Rogers, the employer alleged that the claimant was disqualified from benefits under § 25^1-78(3), Ala.Code 1975, which disqualifies a claimant for misconduct. In that case, the specific issue under review was whether the “claimant has the burden of proving the absence of a disqualification for misconduct.” 68 So.3d at 773-74. Our supreme court answered that question in the negative, concluding that “the employer has the burden of proving that the employee is disqualified [from receiving unemployment compensation] for reasons of misconduct.” 68 So.3d at 781.

Jim Skinner Ford and DIR argue that Ex parte Rogers applies only to the burden of proof applicable under § 25-4-78(3), which concerns disqualification for misconduct, and does not apply to the provision in this case, § 25-4-78(2), which concerns disqualification for voluntarily quitting work. In Ex parte Rogers, the supreme court emphasized the distinction between the eligibility provisions of § 25-4-77 and the disqualification provisions of § 25-4-78. Neither of those sections address the allocation of the burden of proof. Our caselaw is clear that a claimant has the burden of proving eligibility; however, the burden regarding disqualification has not been as clear. In addressing the disqualification provisions, the supreme court, in addition to quoting from the provision in § 25-4-78(3) concerning misconduct, also quoted part of the subsection at issue here, § 25-4-78(2), as well as § 25-4-78(1), which concerns a “labor dispute in place of employment.” The court then addressed certain Alabama cases that suggested that the employee bears the burden of establishing the absence of a disqualification for misconduct. The court observed that “those cases do not address, or even acknowledge, any distinctions as to the burden of proving eligibility, disqualifying circumstances, and justifications or excuses for what would otherwise be disqualifying circumstances.” 68 So.3d at 778. The court then cited a contrary line of Alabama cases that places on the employer the burden of proof as to whether a claimant is disqualified from receiving benefits under § 25-4-78(1) because the claimant’s unemployment is directly due to a labor dispute. The court stated that it had not located any cases attempting to reconcile the two lines of cases “or to make a principled distinction among disqualifications under the various subsections of § 25-4-78.” 68 So.3d at 779.

The supreme court in Ex parte Rogers next observed that “Alabama’s position on the burden of proof for disqualification is contrary to the approach adopted by most or all the other states” that have addressed the issue. 68 So.3d at 779. The court generally noted that many eases from other jurisdictions “recognize that placing the burden of proving a disqualification on the employer has the advantage of imposing the burden of proof on the party that generally has better access to the relevant evidence.” Id. (emphasis added). The court then broadly observed:

“Imposing on the employer the burden of proof as to a claimant’s disqualification for unemployment-compensation purposes is consistent with the general principle that the proponent of an affirmative defense or similar position has the burden of proof as to that position as well as with the disinclination of the law to place upon a party the burden to prove a negative.”

68 So.3d at 780. The supreme court further stated, in broad terms:

■ “Finally, to the extent that, after considering all the foregoing, any uncertainty remains as to who should bear the burden of proving the existence of a disqualifying condition, we note that the ‘Unemployment Compensation Act is in the nature of insurance for the unemployed worker and is intended to be a remedial measure for his benefit [and] should be liberally construed in favor of the claimant and the disqualifications from benefits should be construed narrowly.’ [Department of Indus. Relations v.] Jaco, 337 So.2d [374,] 376 [ (AIa.Civ.App.1976) (overruled on other grounds by Ex parte Rogers) ]. See also Ex parte Sargent, 634 So.2d 1008, 1009 (Ala.1993) (‘Disqualification provisions in the Unemployment Compensation Act should be narrowly construed.’).”

68 So.3d at 780-81. (emphasis added). The supreme court then concluded that the employer in Ex parte Rogers had the burden of proving that the employee is disqualified for misconduct, the particular basis for disqualification at issue in that case.

Based on the reasoning and sweeping language of Ex parte Rogers, we conclude that that case indicates that the employer has the burden of proving that a claimant is disqualified from receiving unemployment-compensation benefits because the claimant voluntarily quit work, pursuant to § 25-4-78(2). DIR and Jim Skinner Ford argue that this cases is not controlled by Ex parte Rogers but by certain older Alabama cases. Several of those cases are factually distinguishable from this case in that they concern whether the claimant had “good cause” when it is clear that he or she had left work voluntarily. See An-dala Co. v. Ganus, 269 Ala. 571, 115 So.2d 123 (1959);- McNealey v. State Dep’t of Indus. Relations, 664 So.2d 913 (Ala.Civ. App.1995); Nowell v. Mobile Cnty. Health Dep’t, 501 So.2d 468 (Ala.Civ.App.1986); Davis v. Haggle, 392 So.2d 1190 (Ala.Civ. App.1980); Department of Indus. Relations v. Meeks, 40 AIa.App. 231, 110 So.2d 643 (1959); and Morrison v. Department of Indus. Relations, 35 Ala.App. 475, 48 So.2d 72 (1950). The following is indicative of the allocation of the burden as stated in those cases: “When the evidence shows that a claimant left his or her employment voluntarily, claimant has the burden of showing good cause connected with such work for leaving.” Department of Indus. Relations v. Meeks, 40 Ala.App. at 233, 110 So.2d at 645. However, in this case, Davis did not argue that he voluntarily left work but had a good cause for doing so; rather, he argued that he did not quit but was fired. That is, the issue concerns the first consideration in § 25-4-78(2)— whether the employee voluntarily quit— and not the second consideration — whether there was good cause for quitting. Thus, we do not read the cases above as indicating that the claimant bears the burden of initially proving that he or she did not voluntarily quit. Therefore, those cases are inapplicable here, and we need not discuss those cases in light Ex parte Rogers.

Two of the cases cited by DIR and Jim Skinner Ford, Tolin v. Director, Department of Industrial Relations, 775 So.2d 887 (Ala.Civ.App.2000), and Alabama Power Co. v. Atkins, 36 Ala.App. 558, 60 So.2d 858 (1952), concerned the issue in this case — whether an employee quit or was fired. In Tolin, this court stated that “[a]n employment-compensation claimant who voluntarily leaves her job and then seeks to avoid disqualification bears the burden of showing that she left her job for ‘good cause’ not connected with her work.” 775 So.2d at 839. Tolin did not state that a claimant has the burden of proving that he or she did not voluntarily quit in the first instance. Thus, we do not read that case as conflicting with the reasoning in this case. In Alabama Power Co. the court noted that “[t]he burden of proof was cast on the claimant to establish his right to the unemployment compensation.” 36 Ala.App. at 559, 60 So.2d at 859. Insofar as that case may be read as placing a burden on the claimant to prove that he or she did not voluntarily quit, it is overruled.

Jim Skinner Ford and DIR next argue that the circuit court erred in determining that Davis did not voluntarily quit his employment. As noted, § 25-4-78(2) provides for the disqualification from receiving unemployment-compensation benefits if a claimant leaves work voluntarily without good cause connected with such work. The issue is simply whether Davis voluntarily quit. DIR and Jim Skinner Ford argue that Davis voluntarily quit, and Davis argues that he did not. Davis does not argue that he quit but had a “good cause” for doing so.

The record on appeal does not contain a transcript of the trial. However, there appears to be little dispute over the essential facts of the case, which the circuit court summarized in its judgment:

“Davis was first employed by [Jim] Skinner [Ford, an automotive dealership,] in 1963 and worked there until September of 2009. He was assigned the position of Fleet Manager around 1969. Davis testified that he had an employment contract but it was never offered into evidence and the court heard of no rules concerning resignation, employment, or termination procedures. In the absence of such proof, the Court concludes that Davis was an employee at will.
“Davis’ position was quite profitable and he was paid well into the six figures. He received 36% of the fleet profits as his compensation, along with the use of two vehicles with fuel expenses, and $1050 a month. He was well paid for his work.
“Davis testified that there were only two employees in the Fleet Department when he left on his June 2009 vacation. The other employee [was] Shannon Dickerson, [who] ... worked under Davis’ supervision.
“Davis’ testimony is that when he returned from his June vacation, he found that a new office manager/comptroller, Latoshas Mack, had been hired. Jimmy and Bobby Skinner[, the owners of Jim Skinner Ford,] had placed her in charge of all employees, including Davis and Dickerson.
“During Davis’ absence, Ms. Mack arrived and investigated the Fleet Department. Without even talking to Davis, she decided that the department was in need of immediate modernization. The extensive paper work was done on typewriter and not computers. When Davis returned he found his department was in transition and he met with Mack to find out what was happening. He requested that the transition be place[d] on hold or phased in to allow him and Dickerson to complete the filing of a $5.5 million ... contract with the City of Birmingham, which was due by the end of July. Mack refused to grant any of Davis’ requests, leading to Davis appealing to Bobby Skinner. He told Davis that Mack’s decisions were not to be questioned and if his complaints involved Mack, there was nothing for them to discuss.
“As Davis was completing the filings for the $5.5 million deal in the end of July, Mack eliminated Dickerson’s flex hour privileges. This further frustrated Davis because it disturbed his assistant who had relied on that system because of child care issues. After another unsatisfactory meeting with Mack, Davis again appealed to Bobby Skinner, complaining that Mack lacked experience and understanding of the fleet operation. He sought a meeting with John Galese[, Jim Skinner Ford’s attorney]. In making his repeated appeals throughout July and August, Davis threatened to resign if the owners would not meet to discuss the changes.
“Ms. Dickerson testified that during that time, Davis twice mentioned that he had resigned, but that she had never seen a document indicating that he quit. He did not behave as if he had resigned or been fired, and did not pack his belongings nor stop his work.
“Galese testified that Davis had called him via phone and resigned during the course of their conversation due to difficulties with Mrs. Mack. Galese testified that he and the Skinners met with Davis in August. At that meeting Davis threatened to resign if the issues regarding Ms. Mack’s changes were not addressed. He was told that his resignation would be accepted if it was offered and Davis responded by saying that he would get back to them.
“Finally, in late August, Galese called Davis into a meeting and told him that his resignation had been accepted. Davis said [‘]okay[’] and that he would stay around long enough to collect the money due the dealership from the City of Birmingham. He then walked out.
“Davis testified that it was never his intent to resign and that his threat to resign in the August meeting was only a bargaining chip. His response to Galese when he said ‘okay’ was the direct result of his being caught completely off-guard.
“Galese testified that during the August meeting, the Skinners and he discussed whether to do anything to retain Davis’ employment, but decided against it. The record shows they decided to accept Davis’ ‘resignation.’ In the late August meeting, and again in the September 3, 2009, meeting, Galese told Davis that his resignation had been accepted. During the September 3, 2009 meeting, which was recorded and entered into evidence ... Galese accepted Davis’ resignation a second time.
“Galese testified that he and the Skinners did not ask Davis to sign a resignation letter, although he admitted that it would have been a good idea. Galese testified that he was not an agent of Jim Skinner Ford, that he did not have authority to sign documents on behalf of [Jim] Skinner [Ford], but that he accepted Mr. Davis’ resignation. It is undisputed that Davis neither signed nor submitted a written resignation and began cleaning out his office in September of 2009.”

Based on that evidence, the circuit court found

“that the employer has failed to reasonably satisfy the court that Davis voluntarily left his employment. The Court is convinced that what happened is that [Jim] Skinner [Ford] sought greater profitability from Davis’ department and concluded that he was making too much money. [Jim] Skinner [Ford] conveniently misconstrued his threat of resignation as a binding, voluntary resignation, in order to achieve its ends.
“Davis’ earnings were far beyond the norm and [Jim] Skinner [Ford] was aware of that before his threat to resign. The evidence is that Ms. Dickerson now makes 20% and 25% of profits from the fleet operation, far less than Davis was making. Davis’ threat to resign was just a bargaining tool. Testimony shows that Galese cannot accept resignations at Skinner and Skinner’s failure to obtain a written resignation. The evidence that there were multiple resignation ac-eeptances[ ] help satisfy the Court that Davis did not voluntarily offer a resignation.
“Insofar as the evidence shows, Davis was an employee-at-will and Skinner had a legal right under Alabama employment law to terminate his employment for any reason whatsoever, regardless of his many years of faithful service.
“The Skinners exercised that right to terminate Mr. Davis’ employment. He was fired.”

Our standard of review in this ease is as follows:

“Where evidence is presented to the trial court ore terms, we presume that the court’s conclusions on issues of fact are correct, and we will not disturb them unless they are clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. However, when the trial court improperly applies the law to the facts, no presumption of correctness attaches to the court’s judgment.”

Ex parte Lamar Advertising Co., 849 So.2d 928, 929-30 (Ala.2002) (citations omitted).

“The Unemployment Compensation Act is ‘insurance for the unemployed worker and is intended to be a remedial measure for his benefit.’ Department of Industrial Relations v. Jaco, 337 So.2d 374, 376 (Ala.Civ.App.1976) [ (overruled on other grounds by Ex parte Rogers, 68 So.3d 773 (Ala.2010)) ]. ‘It should be liberally construed in [the] claimant’s favor and the disqualifications from benefits should be narrowly construed.’ Department of Industrial Relations v. Smith, 360 So.2d 726, 727 (Ala.Civ.App.), cert, den., 360 So.2d 728 (Ala.1978).”

State Dep’t of Indus. Relations v. Bryant, 697 So.2d 469, 470 (Ala.Civ.App.1997).

“The word ‘voluntary’ is not defined in Ala.Code 1975, § 25^1-78. ‘The rules of statutory, construction require that the words used in a statute be given their plain, natural, ordinary, and commonly understood meaning.’ Ex Parte New England Mutual Life Ins. Co., 663 So.2d 952, 955 (Ala.1995) (citing Alabama Farm Bureau Mutual Casualty [Insurance ] Co. v. City of Hartselle, 460 So .2d 1219,1224 (AJa.1984)). The word ‘voluntary’ implies the making of a decision by one’s own accord or choice. ‘Voluntary’ is defined as ‘[Resulting from free choice, without compulsion or solicitation.’ Black’s Law Dictionary 1575 (6th ed.1990).”

Director, Dep’t of Indus. Relations v. Ford, 700 So.2d 1388, 1390 (Ala.Civ.App. 1997).

Although we can find no Alabama case directly on point, a recent case from Arizona is informative. In Figueroa v. Arizona Department of Economic Security, 227 Ariz. 548, 260 P.3d 1113 (Ariz.Ct.App. 2011), the Court of Appeals of Arizona considered whether an employee had voluntarily quit her employment for unemployment-compensation purposes. In that case, the employee alleged that she became “upset about [not receiving a] bonus and ‘advised her supervisor that ... she may consider quitting,’ but she denied ever saying that ‘she was definitely quitting.’ ” 227 Ariz. at 549, 260 P.3d at 1114. The employer alleged that the employee “said if ‘she did not receive her bonus cheek by [that Thursday] that she was going to give her notice of quitting.’ ” Id. Three other employees testified that the employee notified them that she would give her notice by the end of the workweek if she did not receive her bonus. The employee did not receive a bonus. That Friday, the employer began to change the locks on the doors and asked the employee to leave. Id.

The court concluded that the facts “supported a finding only that [the employee] said she planned to quit.” 227 Ariz. at 551, 260 P.3d at 1116. The court further concluded that the employee never actually acted to separate from employment. Instead, the record indicated that the employer had acted to cause the separation from the employment. Thus, the court concluded that the employee did not quit her employment. Id.

Similarly, in this case, the evidence supports the circuit court’s finding that Davis did not voluntarily quit his employment. The circuit court noted that Galese, the attorney for Jim Skinner Ford, testified that Davis “resigned” to him during two telephone conversations. However, the circuit court also observed that Galese “cannot accept resignations” on behalf of Jim Skinner Ford. Apparently after the telephone conversations, Davis had a meeting with Galese and the Skinners at which he threatened to resign if certain of his concerns were not addressed. When Davis was told that his resignation would be accepted if it were offered, Davis indicated that “he would get back to them.” However, Davis did not offer his resignation, and the circuit court found credible his explanation that he used his threat to resign as simply a bargaining chip. Thus, when Jim Skinner Ford purported to later “accept” Davis’s resignation offer, there was no resignation offer on the table to accept. Based on these facts, Davis’s separation from his employment was not the result of his “free choice.” Ford, supra. That is, he did not voluntarily quit but was instead discharged.

We recognize that there was some evidence suggesting that Davis had in fact voluntarily quit. In particular, Dickerson, who worked under Davis, testified that Davis twice mentioned that he “had resigned.” However, the circuit court evidently assigned little weight to that testimony, noting that at the time Davis “did not behave as if he had resigned or been fired, and did not pack his belongings nor stop his work.” It was within the circuit court’s province “to assign such weight to various aspects of the evidence as it may have deemed appropriate.” Miller v. Associated Gulf Land Corp., 941 So.2d 982, 990 (Ala.Civ.App.2005). By acting as if he had not resigned even after telling a coworker that he had “resigned,” Davis’s behavior was consistent with someone using the threat of resignation as a “bargaining chip.”

In conclusion, we hold that the employer has the burden of proving that a claimant is disqualified from unemployment-compensation benefits on the basis that the claimant voluntarily quit work. We affirm the circuit court’s judgment determining that Davis did not voluntarily quit his employment. Our decision pretermits Jim Skinner Ford’s argument that, if Davis did in fact quit his employment, he did so without good cause.

2110859 — AFFIRMED.

2110868 — AFFIRMED.

All the judges concur.