source: Caselaw Access Project

author: STUART, Justice. MURDOCK, Justice MOORE, Chief Justice

license: Public Domain

text:
    GUARDIAN BUILDERS, LLC, and E. Wayne Tackett v. Randy USELTON and Melissa Uselton.
    1121534.
    Supreme Court of Alabama.
    April 11, 2014.

      Gary K. Grace and Bree Taylor Wilb-ourn of Grace, Matthews & Debro, LLC, Huntsville, for appellants.
    Melissa D. Endsley and Thomas S. McGrath of McGrath Law Firm, Huntsville, for appellees.
   STUART, Justice.

Guardian Builders, LLC, and E. Wayne Tackett (hereinafter referred to collectively as “Guardian”) appeal from an order of the Madison Circuit Court denying their motion to vacate or modify an arbitration award entered in favor of Randy Uselton and his wife Melissa Uselton. We reverse and remand.

I.

This Court previously dismissed a premature appeal filed by Guardian in this action. Guardian Builders, LLG v. Uselton, 130 So.3d 179 (Ala.2013). At that time, we summarized the history of the parties’ dispute as follows:

“In April 2010, the Useltons sued Guardian in the Madison Circuit Court, alleging several claims arising from Guardian’s construction of a house for the Useltons. Guardian subsequently filed a motion to compel arbitration, and the circuit court granted that motion in October 2010. On December 21, 2011, the arbitrator entered a final award in favor of the Useltons in the amount of $452,275.20. On January 11, 2012, Guardian filed with the circuit court a motion to vacate or modify the arbitration award, to which it attached a copy of the arbitration award. On May 15, 2012, the Useltons filed a ‘motion to confirm’ the arbitration award and a response to Guardian’s motion to vacate or modify. On May 31, 2012, the circuit court entered an order purporting to deny Guardian’s motion to vacate or modify the arbitration award, purporting to grant the Useltons’ motion to confirm the arbitration award, and purporting to order Guardian to pay $1,421.75 in Better Business Bureau fees and facility costs related to the arbitration. Guardian appealed.”

130 So.3d at 180. However, before this Court considered the merits of Guardian’s arguments in that appeal, we noted that the clerk of the Madison Circuit Court had never entered the arbitration award as the judgment of that court; therefore, the trial court’s order purporting to deny Guardian’s motion to vacate or modify the arbitration award — the order being appealed— was void. 130 So.3d at 184. See Rule 71B(f), Ala. R. Civ. P. (stating that, after an appeal of an arbitration award is initiated in the circuit court, “[t]he clerk of the circuit court promptly shall enter the award as the final judgment of the court”). Accordingly, we vacated the trial court’s order and dismissed Guardian’s appeal, noting that, “[ejssentially, Guardian’s appeal remains pending in the circuit court, awaiting further procedures under Rule 71B.” 130 So.3d at 184.

On September 30, 2013, following our decision in Guardian Builders, the circuit court clerk entered the arbitration award in favor of the Useltons as the final judgment of the court pursuant to Rule 71B(f); on that same date Guardian moved the trial court to vacate or modify the award. Also that same day, the trial court denied Guardian’s motion and Guardian filed its notice of appeal to this Court.

II.

Guardian argues that the trial court erred by denying its motion to vacate or modify the arbitration award returned in favor of the Useltons and that, pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“the FAA”), the judgment adopting the arbitration 'award should be reversed.

“In R.P. Industries, Inc. v. S & M Equipment Co., 896 So.2d 460 (2004), this Court reviewed the trial court’s order granting a motion to confirm an arbitration award and denying the opposing party’s motion to vacate that award. We stated:

‘““Where parties, as in this case, have agreed that disputes should go to arbitration, the role of the courts in reviewing the arbitration award is limited. Transit Casualty Co. v. Trenwick Reinsurance Co., 659 F.Supp. 1346 (S.D.N.Y.1987), affirmed, 841 F.2d 1117 (2d Cir.1988); Saxis Steamship Co. v. Multifacs International Traders, Inc., 375 F.2d 577 (2d Cir. 1967). On motions to confirm or to vacate an award, it is not the function of courts to agree or disagree with the reasoning of the arbitrators. Application of States Marine Corp. of Delaware, 127 F.Supp. 943 (S.D.N.Y.1954). Courts are only to ascertain whether there exists one of the specific grounds for vacation of an award. Saxis Steamship Co. A court cannot set aside the arbitration award just because it disagrees with it; a policy allowing it to do so would undermine the federal policy of encouraging the settlement of disputes by arbitration. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); Virgin Islands Nursing Association’s Bargaining Unit v. Schneider, 668 F.2d 221 (3d Cir.1981). An award should be vacated only where the party attacking the award clearly establishes one of the grounds specified [in 9 U.S.C. § 10]. Catz American Co. v. Pearl Grange Fruit Exchange, Inc., 292 F.Supp. 549 (S.D.N.Y.1968).” ’
896 So.2d at 464 (quoting Maxus, Inc. v. Sciacca, 598 So.2d 1376, 1380-81 (Ala. 1992)). The standard by which an appellate court reviews a trial court’s order confirming an arbitration award under the Federal Arbitration Act is that questions of law are reviewed de novo and findings of fact are reviewed only for clear error. See Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1289 (11th Cir. 2002).”

Hereford v. D.R. Horton, Inc., 13 So.3d 375, 378 (Ala.2009).

On appeal, Guardian does not take issue with the essence of the decision made by the arbitrator: That Guardian Builders negligently constructed and delivered to the Useltons a house containing substantial defects and deficiencies and, as a result, the Useltons were entitled to certain damages. Rather, Guardian objects only to a subset of the damages that were awarded the Useltons that were not directly related to the poorly constructed house, specifically, attorney fees and arbitration fees (including both the arbitrator fee and the forum fee charged by the Better Business Bureau of North Alabama (“the BBB”), which administered the arbitration).

When the arbitrator issued his interim decision on November 22, 2011, he awarded the Useltons $305,711.05 in damages, a sum that included a $10,311.05 arbitrator fee. The arbitrator further stated in that decision that Guardian would be liable for the Useltons’ reasonable attorney fees and for the forum fee paid the BBB, and the arbitrator gave the Useltons 30 days to submit evidence of those costs. The Usel-tons’ attorney subsequently submitted to the arbitrator an affidavit indicating that his contract with the Useltons entitled him to 45% of any amount recovered and the repayment of all expenses; accordingly, he requested an additional $137,569.97 for his contingency fee and $8,994.21 in litigation expenses, which included $1,121.50 for the forum fee paid to the BBB. On December 21, 2011, the arbitrator, over Guardian’s objection that he lacked authority to award attorney and arbitration fees, issued his final decision awarding the Useltons a total of $452,275.20.

Guardian argues that the arbitration agreement entered into by it and the Useltons did not authorize the arbitrator to award attorney fees or arbitration fees and that the arbitrator accordingly exceeded his authority by awarding such fees. Thus, Guardian argues, the arbitration award should be vacated or modified pursuant to § 10(a)(4) of the FAA, which authorizes the vacatur of an arbitration award “where the arbitrators exceeded their powers.” This Court explained the analysis to which such a claim is subjected in R.P. Industries, Inc. v. S & M Equipment Co., 896 So.2d 460, 464-65 (2004):

“In reviewing a challenge to an arbitration award on the basis that the arbitrators exceeded their powers, a circuit court, in the first instance, and this Court or the Court of Civil Appeals, at the appellate level, must bear in mind the narrow scope of that ground:
“ ‘ “We have consistently accorded the narrowest reading to section 10(d) [currently section 10(a)(4) ], especially when it has been invoked in the context of the arbitrators’ alleged failure to correctly decide a question which all concede to have been properly submitted in the first instance. Our inquiry under § 10(a)(4) thus focuses on whether the arbitrators had the power, based on the parties’ submissions or the arbitration agreement, to reach a certain issue, not whether the arbitrators correctly decided that issue.” ’
“Birmingham News [Co. v. Horn ], 901 So.2d [27,] 47 [ (Ala.2004) ] (quoting DiRussa v. Dean Witter Reynolds Inc., 121 F.3d 818, 824 (2d Cir.1997)).
“Even before the enactment of the FAA, our caselaw had considered the general concept that an arbitration award must conform to the power and authority accorded the arbitrators by the arbitrating parties. The following analysis appears in Reynolds v. Reynolds, 15 Ala. 398, 403 (1849):
“ ‘It is well settled, that an award must conform to the submission under which it is made. If, therefore, arbitrators transcend their authority, pro tanto their award will be void, and will stand good for the residue, unless that which is void, affects the merits of the submission, so that it cannot, without injustice, be separated from it; but if it forms the consideration for what the other party is required to do, the award will be void in toto.
“ ‘All reasonable presumptions shall be made in favor of awards; and if, by the application of this principle, an award can be brought within the submission, and is in other respects unexceptionable, it will be sustained.’

“(Citations omitted.)”

III.

Before we can determine whether the arbitrator exceeded his power in awarding the Useltons attorney fees, we must first determine what authority Guardian and the Useltons granted the arbitrator. The arbitration provision in the construction agreement executed by the parties provides, in whole:

“Any disputes that cannot be settled through mediation shall be settled through binding arbitration. The BBB of North Alabama Mediation Center, an independent third party neutral, shall provide the binding arbitration service. A volunteer BBB arbitrator will render a decision he/she considers to be fair and just. The arbitration fees shall be based upon the current rate of the BBB of North Alabama Mediation Center and shall be paid by both parties. This agreement affects legal rights of both parties as they are agreeing to resolve the dispute between them described above by binding arbitration, rather than by litigation in any court other than for claims that fall within the jurisdiction of small claims court.”

Thus, by the terms of the arbitration provision, Guardian and the Useltons empowered an arbitrator deciding a dispute between them submitted to him or her to render a decision “he/she considered] to be fair and just.” However, because Guardian and the Useltons further agreed that arbitration services would be provided by the BBB, any limitations to the arbitrator’s authority found in the BBB rules governing their dispute also apply. The BBB rules governing arbitration conducted pursuant to a binding predispute arbitration agreement do not expressly provide for or prohibit an award of attorney fees; however, they do contain the following provisions concerning an arbitrator’s authority:

“3. Remedies
“The arbitrator may award any remedy that is permitted under applicable law; provided, however, that the arbitrator may not award any remedies that the parties have agreed in writing may not be awarded in arbitration.
“29. The Decision
“A. Scope of decision
“A decision shall be one that: the arbitrator considers fair; is limited to the issues raised in the demand for arbitration and any counterclaim; and falls within the scope of these Rules.
“Unless otherwise provided by the agreement of the parties, the arbitrator is not bound to apply legal principles in reaching what the arbitrator considers to be a fair resolution of the dispute.
“D. Correcting the decision or reasons for decision
“You may request correction of the decision or the reasons for decision if you believe the decision or reasons contain a mistake of fact, a miscalculation of figures, or exceed the arbitrator’s authority.
“The arbitrator’s authority is limited to the scope of these Rules.”

Guardian argues that the BBB rules expressly limit the arbitrator’s authority to the scope of those rules and that the rules authorize an arbitrator to award only a remedy “that is permitted under applicable law.” The construction agreement provides that the applicable law in this case is “the law of the State of Alabama,” and, Guardian argues, “[i]t is well settled that ‘ “Alabama follows the ‘American rule.’ ” ’ ” Jones v. Regions Bank, 25 So.3d 427, 441 (Ala.2009) (quoting City of Bessemer v. McClain, 957 So.2d 1061, 1078 (Ala.2006), quoting in turn Battle v. City of Birmingham, 656 So.2d 344, 347 (Ala.1995)). The American rule generally provides that a prevailing party in litigation is not entitled to an award of attorney fees unless those fees are provided for by statute or by contract or if they are otherwise justified for certain equitable reasons. Classroom-direct, com, LLC v. Draphix, LLC, 992 So.2d 692, 710 (Ala.2008). There is no allegation in this case that any statute exists that would authorize an award of attorney fees for a cause of action such as the one brought by the Useltons, and it is undisputed that the parties did not agree by contract that the prevailing party in any dispute was entitled to compensation for their attorney fees. Moreover, there has been no argument, and we are aware of no authority, indicating that equity requires an award of attorney fees in this case. Accordingly, Guardian argues, the arbitrator was without authority to award attorney fees to the Useltons because the American rule, which Guardian argues the arbitrator was bound to apply, does not allow such an award.

The Useltons, however, argue that the construction agreement empowered the arbitrator to grant any relief he considered “to be fair and just” and that the BBB rules reinforce this broad grant of authority inasmuch as those rules state that a decision shall be one that “the arbitrator considers fair.” Moreover, although Guardian emphasizes the provision in Rule 3 of the BBB rules stating that the arbitrator “may award any remedy that is permitted under applicable law,” the Useltons highlight the statement in Rule 29.A that “the arbitrator is not bound to apply legal principles in reaching what the arbitrator considers to be a fair resolution of the dispute.”

The Useltons also cite this Court’s decision in R.P. Industries, which, they say, supports their argument that Alabama law does not preclude an arbitrator from awarding attorney fees to the prevailing party. In R.P. Industries, this Court held that an arbitration panel did not exceed its powers in making an award of attorney fees, 896 So.2d at 470, and the Useltons note the similarity between the Construction Industry Arbitration Rules of the American Arbitration Association, which applied in that case and which provide that an arbitrator “ ‘may grant any remedy or relief that the arbitrator deems just and equitable,’” 896 So.2d at 467 (emphasis omitted), and the BBB rules in this case, which provide that the decision returned by the arbitrator shall be one that the arbitrator “considers fair.”

However, although R.P. Industries does provide some guidance for bur resolution of this case, its utility is ultimately limited by the fact that the Construction Industry Arbitration Rules of the American Arbitration Association expressly authorize “‘an award of attorneys’ fees if all parties have requested such an award,’” 896 So.2d at 467 (emphasis omitted); in fact, both parties in R.P. Industries did request attorney fees. 896 So.2d at 470. No equivalent BBB rule exists in the present case, however. Moreover, although some courts have held that parties to an arbitration have implicitly authorized an arbitrator to make an award of attorney fees when both parties have made a request for attorney fees — even in the absence of any express delegation of that authority in the relevant arbitration agreement or applicable arbitration rules — there is no evidence in the record indicating that the Useltons made a request for attorney fees in this case, either in their complaint filed pre-arbitration or during the course of the arbitration proceedings. See Hollern v. Wachovia Sec., Inc., 458 F.3d 1169, 1174 (10th Cir. 2006) (noting that the parties’ contract containing an arbitration provision “did not expressly permit an award of attorneys’ fees” but that “the parties expressly empowered the arbitrators to award attorneys’ fees” by incorporating their pleadings containing “parallel requests for attorneys’ fees” into a uniform submission agreement). Thus, Guardian argues that the arbitrator exceeded his authority not only by awarding a remedy that is not permitted by applicable law (attorney fees), but also by ruling on an issue that was not submitted to him (attorney fees). See R.P. Industries, 896 So.2d at 466 (“ ‘An arbitrator exceeds his powers when he “rule[s] on issues not presented to [him] by the parties.” ’ ” (quoting Hoeft v. MVL Grp., Inc., 343 F.3d 57, 71 (2d Cir. 2003), quoting in turn Fahnestock & Co. v. Wattman, 935 F.2d 512, 515 (2d Cir. 1991))).

We agree with Guardian that the arbitrator exceeded his authority by awarding the Useltons attorney fees. The BBB rules expressly state that the arbitrator’s authority is limited by the scope of those rules and that he or she “may award any remedy that is permitted under applicable law.” This is to say that the arbitrator may award only those remedies permitted by applicable law, in this case, Alabama law. As discussed supra, Alabama generally follows the American rule, which provides that parties are responsible for their own attorney fees, and no argument has been made indicating that the facts of this case warrant an exception to the application, of that rule based on the existence of a relevant statute or agreement authorizing an award of attorney fees or for other equitable reasons.

Moreover, we are not convinced by the Useltons’ argument that BBB Rule 29.A providing that the arbitrator “is not bound to apply legal principles in reaching what the arbitrator considers to be a fair resolution” is in conflict with, preempts, or creates ambiguity when considered in conjunction with, BBB Rule 3 limiting the arbitrator to awarding only those remedies “permitted under applicable law.” Written documents “are to be construed as a whole so as to harmonize their parts whenever possible.” Dudley v. Fridge, 443 So.2d 1207, 1211 (Ala.1983). Applying this principle to the BBB rules, one can see that although an arbitrator might not be bound to apply a specific legal principle, such as the Statute of Frauds, when reaching what he or she considers to be “a fair resolution” on the issue of liability, any remedy ultimately awarded must still be one “that is permitted under applicable law.” Inasmuch as the arbitrator in this case awarded attorney fees to the Useltons, that remedy was not permitted under Alabama law, and the arbitrator accordingly exceeded the scope of his authority by making that award.

IV.

We reach a similar conclusion with regard to the arbitration fees the arbitrator ordered Guardian to pay. As the Useltons correctly, note, court costs are distinguishable from attorney fees. See White Springs Agric. Chems., Inc. v. Glawson Invs. Corp., 660 F.3d 1277, 1282 (11th Cir.2011) (recognizing that a general demand for costs does not encompass a request for attorney fees). The American rule applied in Alabama generally prohibits a losing party from being ordered to pay the attorney fees incurred by the prevailing party, but the American rule does not prohibit an award of court costs to the prevailing party. In practice, such awards are commonplace and specifically authorized by Rule 54(d), Ala. R. Civ. P., which provides that, “[e]xcept when express provision therefor is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs.” Our Rule 54(d) is modeled on Rule 54(d), Fed.R.Civ.P., and, in Anderson v. Griffin, 397 F.3d 515, 522 (7th Cir.2005), the United States Court of Appeals for the Seventh Circuit offered an explanation for the differing treatment of court costs and attorney fees under the American rule:

“Last, the plaintiffs challenge the award of court costs pursuant to Fed. R.Civ.P. 54(d)(1). For obscure reasons, given the ‘American rule’ that requires each side to a lawsuit to bear its legal expenses rather than making the loser reimburse the winner’s reasonable expenses, the law allows the winning party to recover from the loser the winner’s ‘court costs,’ a stereotyped list of usually though not always modest items of expense, exclusive of legal fees. (They amount here to a shade under $13,000.) The rule is generally thought a vestige of the English ‘loser pays’ rule, e.g., John M. Blumers, Note, A Practice in Search of a Policy: Considerations of Relative Financial Standing in Cost Awards Under Federal Rule of Civil Procedure 51(d)(1), 75 B.U.L.Rev. 1541, 1562-63, 1566 (1995); insofar as the main objection to the English rule is that calculating a reasonable attorney’s fee is difficult and cumbersome, it falls away when the calculation is limited to the items taxable as costs. Baez v. U.S. Department of Justice, 684 F.2d 999, 1002-04 (D.C.Cir.1982) (en banc) (per curiam); see generally Vincennes Steel Corp. v. Miller, 94 F.2d 347, 348-49 (5th Cir.1938); Trinidad Asphalt Paving Co. v. Robinson, 52 F. 347 (E.D.Mich.1892); 10 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2665, pp. 199-202 (3d ed. 1998)....”

Assuming, therefore, that arbitration fees are the functional equivalent of court costs, an award of arbitration fees to the prevailing party in an arbitration proceeding might be a remedy permitted under Alabama law and thus within the authority of an arbitrator operating under the BBB rules unless there is a more specific provision in the parties’ agreement that would prevent such an award. Precisely such a provision exists in this case.

The arbitration provision in the construction agreement executed by the Useltons and Guardian provides that “[t]he arbitration fees shall be based upon the current rate of the BBB of North Alabama Mediation Center and shall be paid by both parties.” The Useltons acknowledge this provision; however, they argue that they were billed one-half the arbitration fees before the arbitration hearing and that they paid all fees that were billed to them. The BBB rules in fact indicate that payment of such fees is generally required before the arbitration hearing can proceed. See BBB Rule 4 (providing, in part, that the “BBB may decline to schedule an arbitration hearing if the parties do not pay administration fees when due”). Thus, the Useltons argue, they were required by contract to pay one-half the arbitration fees, and the arbitration hearing would not have occurred had they refused, but the arbitrator was nevertheless empowered to award them their costs at the conclusion of the arbitration hearing without violating the requirement in the contract that “the arbitration fees ... shall be paid by both parties.” Guardian counters by arguing that the provision is clear and must be enforced as written.

We agree with Guardian; the arbitrator exceeded his authority by ordering Guardian to pay the Useltons’ arbitration fees in light of the clear language in the arbitration provision requiring those fees to “be paid by both parties.” In Flack-Beane Lumber Co. v. Bass, 258 Ala. 225, 228, 62 So.2d 235, 238 (1952), we stated:

“The arbitrators’ jurisdiction, or authority to act, is derived from, and limited by, the arbitration agreement or submission, which forms the basis or foundation for their award, and, hence, it is essential that the award conform to, and comply with, the arbitration submission or agreement no matter what its form or kind.”

Inasmuch as the arbitrator awarded the Useltons their arbitration expenses, the award did not conform with the parties’ arbitration agreement and is, accordingly, due to be reversed.

V.

Finally, we consider the Useltons’ argument that, if any portion of the arbitration award is vacated, we must set aside the award in its entirety and remand the case for a new trial in the Madison Circuit Court. They state in their brief:

“Modifying or vacating any portion of the arbitrator’s award would destroy the entire intent of what he intended the [Useltons] to recover because the vacation or modification of the award to exclude attorney fees or an award of costs would result in the [Useltons’] receiving approximately $145,000 less than the arbitrator intended once attorney fees and expenses are deducted. Therefore, if any portion of the award is modified or vacated, all of the award must be vacated and this matter retried.”

The Useltons’ brief, p. '27. Thus, the Usel-tons’ argument is essentially that the arbitrator’s award should be vacated as it relates to the compensatory damages he awarded because those damages are now insufficient to make the Useltons whole. However, we have stated that a party seeking the vacation or modification of an arbitration award must frame its arguments by reference to § 10 (or § 11) of the FAA. Cavalier Mfg., Inc. v. Gant, 143 So.3d 762, 769 (Ala.2013). The Useltons have not cited the FAA, any other statute, or any caselaw in support of their argument that if any part of the entire arbitration award is vacated the entire award should be vacated, and we accordingly grant the argument no further consideration. See White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala. 2008) (“Rule 28(a)(10)[, Ala. R.App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party’s position. If they do not, the arguments are waived.”).

VI.

Guardian appealed the .order of the' Madison Circuit Court denying Guardian’s motion to vacate or modify an arbitration award entered in favor of the Useltons because, Guardian argued, the arbitrator lacked the authority to award the Useltons attorney fees and arbitration fees. We agree that the arbitrator exceeded his authority by awarding those remedies. Attorney fees were not authorized by the parties’ agreement, and the BBB rules governing their arbitration limited the remedies available to the arbitrator to those permitted under Alabama law, which incorporates the American rule generally prohibiting losing parties from being ordered to pay the attorney fees of prevailing parties. Moreover, the arbitration provision in the construction agreement expressly provided that “the arbitration fees ... shall be paid by both parties.” Accordingly, the trial court’s judgment is reversed and the cause remanded for the trial court to enter a modified judgment subtracting attorney fees and arbitration fees from the award made to the Useltons.

REVERSED AND REMANDED.

BOLIN, PARKER, SHAW, MAIN, WISE, and BRYAN, JJ., concur.

MURDOCK, J., concurs in the rationale in part and concurs in the result.

MOORE, C.J., concurs in the result in part and dissents in part.

MURDOCK, Justice

(concurring in the rationale in part and concurring in the result).

Although I agree in the main with the analysis set out in Part III of the main opinion, I write separately to be clear that, in my view, even in the absence of the “BBB rules” cited in the main opinion, the parties’ contractual agreement that the arbitrator was empowered to render a decision “he/she considered] to be fair and just” does not qualify as an agreement for one party to pay the other’s attorney fees within the meaning of those cases identifying three exceptions to the “American rule” disallowing such payments. See generally Classroomdirect.com, LLC v. Draphix, LLC, 992 So.2d 692, 710 (Ala.2008). Nor do I read this clause in the parties’ arbitration agreement, or any provision of the BBB rules, to constitute a submission to the arbitrator of the question whether to award an attorney fee or to award the arbitration fees. See 154 So.3d at 972 n. 5.

As to the issue of the arbitration fees, I concur in the result reached in Part IV of the main opinion but respectfully decline to join the premise set out near the outset of the analysis. Specifically, I am not inclined to “assume” for the sake of discussion that “arbitration fees are the functional equivalent of court costs,” 154 So.3d at 973; nor would I leave open the corollary possibility that “an award of arbitration fees to the prevailing party ... might be a remedy permitted under Alabama law and thus within the authority of an arbitrator operating under the BBB rules unless there is a more specific provision in the parties’ agreement that would prevent such an award.” 154 So.3d at 973. The general rule of “costs” was developed in and for normal civil litigation — in a court— where such costs are by nature generally “modest” and “incidental” (not to mention predictable and easily calculated without likelihood of dispute). See Anderson v. Griffin, 397 F.3d 515, 522 (7th Cir.2005) (explaining why mere “costs” traditionally have been viewed differently than attorney fees). We are not concerned here with “costs” in a court proceeding. To speak colloquially, I believe arbitrators’ fees are simply a “different animal” than court costs. They are a function of the parties’ creation of a private dispute-resolution mechanism, and, as part of that mechanism, they bear as much or more resemblance in nature, amount, predictability, and ease of calculation to private attorney fees as they do to conventional court costs.

As to the issue discussed in Part V of the main opinion — whether the entire award must be set aside in this case — it appears that the dispositive principle would be that which was reaffirmed by this Court in R.P. Industries, Inc., v. S & M Equipment Co., 896 So.2d 460 (Ala.2004):

“ ‘If, therefore, arbitrators transcend their authority, pro tanto their award will be void, and will stand good for the residue, unless that which is void, affects the merits of the submission, so that it cannot, without injustice, be separated from it....’”

896 So.2d at 464 (quoting Reynolds v. Reynolds, 15 Ala. 398, 403 (1849)). In this case, it is appropriate to consider the arbitrator’s award to be void only pro tanto because it is not the case that the award of attorney fees and the award of the arbitration fees “cannot, without injustice, be separated” from the remainder of the arbitrator’s award.

MOORE, Chief Justice

(concurring in the result in part and dissenting in part).

I concur in reversing the award of attorney fees, but I respectfully dissent from reversing the award of the arbitration fees.

I have three objections to applying the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“the FAA”), to enforce predispute arbitration agreements. I explained two of my three objections in my dissent in Selma Medical Center, Inc. v. Fontenot, 824 So.2d 668, 677 (Ala.2001) (Moore, C.J., dissenting):

“First, because the FAA in its entirety establishes a set of procedures intended to apply only in United States district courts, it has no application in a case such as this, where proper jurisdiction lies exclusively in a court of the State of Alabama. In 1925, when Congress enacted the FAA, Congress was not acting under its power granted in Article I to regulate interstate commerce, but rather, it was acting under its power granted in Article III to prescribe rules of procedure for courts. Second, Congress’s power to regulate interstate commerce has been unconstitutionally expanded by the courts. As a result, Congress has been able to reach by federal regulation activities that are clearly intrastate in nature. Courts exacerbate this error by applying the expansive Commerce Clause jurisprudence to the FAA and thereby enforcing federal arbitration law when state laws should control.”

Third, it appears to me that the FAA is unconstitutional under the Seventh Amendment to the United States Constitution, which provides:

“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.”

At the time the Seventh Amendment was ratified, the common law provided that parties could agree to submit a dispute to arbitration only after a dispute had arisen, but any agreement to submit disputes to arbitration before a dispute had arisen was considered an improper attempt to divest courts of their jurisdiction. See Home Ins. Co. of New York v. Morse, 87 U.S. (20 Wall.) 445, 451, 22 L.Ed. 365 (1874); Riddlesbarger v. Hartford Ins. Co., 74 U.S. (7 Wall.) 386, 390-91, 19 L.Ed. 257 (1868); Birmingham News Co. v. Horn, 901 So.2d 27, 44 (Ala.2004), overruled on other grounds, Hereford v. Horton, 13 So.3d 375, 379-80 (2009), and Horton Homes, Inc. v. Shaner, 999 So.2d 462, 466 (Ala.2008); 3 William Blackstone, Commentaries *16-17. See also II Message of the President of the United States Transmitting the Report of the Employers’ Liability and Workmen’s Compensation Commission 769 (Government Printing Office 1912) (brief of Morris M. Cohen) (“But passing this, a general waiver of a jury trial before any cause of action has accrued is obviously against public policy and is, in effect, an attempt to nullify the seventh amendment to the Constitution. It is impossible to conceive how a man can waive a thing which does not exist at the time he waives it; that is to say, the right to a jury trial does not exist until a cause of action has accrued.”). Cf. Ex parte First Exch. Bank, 150 So.3d 1010, 1019 (Ala.2013) (Moore, C.J., concurring specially) (arguing that a predispute contractual jury waiver violates the right to trial by jury as guaranteed by the Alabama Constitution). Thus, because the FAA cuts off an injured party’s right to trial by jury by enforcing agreements that were illegal at common law, it appears to me that the FAA is unconstitutional under the Seventh Amendment.

In this case, if the arbitration agreement was unenforceable under the principles stated above, then the Useltons would have been entitled to their day in court. If the Useltons had won the court battle, then they would not have been entitled to attorney fees pursuant to the American rule. Classroomdirect.com, LLC v. Draphix, LLC, 992 So.2d 692, 710 (Ala.2008). If the arbitration agreement was enforceable, then I would agree with the main opinion that the arbitrator exceeded the scope of his powers in awarding attorney fees. But because of my concerns about the applicability of the FAA in this case, I concur only in the result as to the issue of attorney fees.

Arbitration costs, however, are another matter. If the Useltons had not been forced to arbitration and had then prevailed in court, they would have been awarded costs. Rule 54(d), Ala. R. Civ. P. Moreover, even if the arbitration agreement was enforceable, the agreement does not preclude the arbitrator from awarding costs to the prevailing party. The agreement simply states that “[t]he arbitration fees ... shall be paid by both parties.” This provision requires each party to pay arbitration costs up front but says nothing about whether the arbitrator is precluded from awarding costs to the prevailing party, which would have been awarded by a court of law in Alabama, at the end of the arbitration proceeding. I also note that the Better Business Bureau of North Alabama Rules provide that “[t]he arbitrator may award any remedy that is permitted under applicable law.” Thus, it is clear to me that the agreement does not prohibit the arbitrator from awarding costs to the prevailing party. Therefore, I respeetfully dissent from reversing the award of the arbitration fees.

      . The record before us does not explain why the amount awarded — $452,275.20—is $ .03 less than the sum of its parts — $305,711.05 initial damages award, $137,569.97 attorney fee, and $8,994.21 litigation expenses.

      . The construction agreement did state under a section entitled "Late Payment” that the Useltons "shall pay all attorney fees incurred by [Guardian] to collect sums owed."

      . This Court has previously recognized equitable exceptions to the American rule in proceedings where the attorney’s efforts create a common fund out of which fees may be paid or where there has been fraud, negligence, malice, or bad faith. Reynolds v. First Alabama Bank of Montgomery, N.A., 471 So.2d 1238, 1241-45 (Ala. 1985).

      . In its brief, Guardian states:
      "It was not until the arbitrator issued his ruling on November 22, 2011, over one month after the arbitration was concluded, that Guardian Builders was even aware that the arbitrator (1) considered and (2) decided to make an award for prevailing party attorney’s fees. The arbitrator never informed Guardian Builders during the arbitration proceedings that it would consider an award of attorney’s fees.”
      Guardian’s brief, p. 21.

      . An agreement authorizing an award of attorney fees could be explicit, such as a provision in an arbitration agreement specifically authorizing the award of attorney fees by the arbitrator or a provision in an arbitration agreement declaring that arbitration proceedings will be conducted pursuant to a set of rules that specifically allow the arbitrator to award attorney fees, or implicit, such as when all parties to an arbitration request that the arbitrator award attorney fees. However, no agreement of either sort exists in this case.

      . Moreover, even if we were inclined to see conflict between Rules 3 and 29.A, we generally hold that a more specific provision controls over a general provision, and Rule 3, limiting an arbitrator to awarding only those remedies "permitted under applicable law,” is more relevant to the issue whether the arbitrator was empowered to order the payment of the opposing party's attorney fees as a remedy. See, e.g., ERA Commander Realty, Inc. v. Harrigan, 514 So.2d 1329, 1335 (Ala. 1987) ("When there is a conflict in a contract, the specific substantive provisions control over general provisions.”).

      . Despite the obvious similarities, court costs and arbitration fees are distinguishable in some ways. Notably, as Anderson, 397 F.3d at 522, states, court costs are generally "modest.” This is because much of the expense is borne by the government sponsoring the court system deciding the dispute. No such subsidization exists with regard to arbitration.

      . Justice Almon took a similar position in his dissent in Ex parte McNaughton, 728 So.2d 592, 601-02 (Ala.1998) (Almon, J., dissenting), arguing forcefully:
      "How can the Supreme Court, ignoring the Seventh and Tenth Amendments and state constitutional guarantees of the right of trial by jury, construe an Act of Congress beyond its original intent in such a way as to prevent citizens of the United States and the states from exercising their constitutional right to litigate in court? Neither the Supreme Court nor the Congress has that constitutional authority.”

        . Even if the provision in the agreement was ambiguous, "ambiguity in a contract must be construed against the drafter of the contract.” South.Trust Bank v. Copeland One, L.L.C., 886 So.2d 38, 43 (Ala.2003). Because Guardian Builders, LLC, drafted the contract, this Court should have construed this provision in favor of the Useltons.


author: STUART, Justice. MOORE, Chief Justice

text:
    Ex parte USA WATER SKI, INC. (In re Joy King Ewing, f/k/a Joy King, as personal representative of the Estate of Stewart Arthur Bieber, and Rachel K. Bieber v. Colonel Biggs Water Ski Show Team et al.).
    1130229.
    Supreme Court of Alabama.
    May 30, 2014.
    M. Jansen Voss of Scott, Sullivan, Streetman & Fox, P.C., Birmingham, for petitioner.
    Clark R. Hammond of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for respondents.
   STUART, Justice.

PETITION DENIED. NO OPINION.

BOLIN, PARKER, MURDOCK, SHAW, WISE, and BRYAN, JJ., concur.

MOORE, C.J., concurs specially.

MOORE, Chief Justice

(concurring specially).

I concur in denying the petition for the writ of mandamus. I write separately to emphasize that the petition before us demonstrates why this • Court should avoid meddling in discovery matters before the trial court. In Ex parte USA Water Ski Inc., 135 So.3d 247 (Ala.2013), this Court held that a certain post-accident report was privileged under the work-product doctrine and directed the trial court to vacate its order compelling USA Water Ski, Inc., to produce the post-accident report. Although I did not write, I dissented for the reasons I dissented in Ex parte Mobile Gas Service Corp., 123 So.3d 499, 516 (Ala.2013), namely, because “I do not believe mandamus relief is proper in the context of discovery proceedings.” “Discovery matters are within the trial court’s sound discretion, and this Court will not reverse a trial court’s ruling on a discovery issue unless the trial court has clearly exceeded its discretion.” Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813 (Ala. 2003).

Now new facts have come to light in this case that suggest the post-accident report was not prepared in anticipation of trial and, hence, is not protected by the work-product doctrine. We are back to where we began: The trial court has ordered USA Water Ski to produce the post-accident report, and USA Water Ski again seeks a writ of mandamus directing the trial court to protect the post-accident report as privileged under the work-product doctrine. This time the Court reaches the right conclusion by deferring to the trial court’s findings and denying the petition for a writ of mandamus. A trial court’s discretion in discovery matters is necessarily wide because discovery is detailed and intricate. Trial courts are more involved with the specific facts, the parties, and the evidence and are in a better position to evaluate what documents are or are not discoverable.

The trial court did not exceed its discretion by ordering the production of the post-accident report. Nor did its order require an extraordinary remedy that would necessitate this Court’s involvement in the case at this time. Therefore, I concur to deny the petition for a writ of mandamus.

      . See also Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 817 (Ala.2003) (Moore, C.J., concurring in the result).


author:
MAIN, Justice.
     MOORE, Chief Justice

text:
    Mary Leila Beasley SCHAEFFER and the Estate of Emma Glass Beasley v. William M. POELLNITZ, as administrator of the Estate of Edwin G. Young, deceased, et al.
    1110353.
    Supreme Court of Alabama.
    May 30, 2014.

      Marc James Ayers of Bradley Arant Boult Cummings LLP, Birmingham, for appellants.
    Woodford W. Dinning, Jr., and Alexander F. Braswell of Lloyd & Dinning, LLC, Demopolis, for appellee.
    Deborah Alley Smith, Abbott Marie Jones, and Sharon D. Stuart, chairperson of amicus curiae Committee, Alabama Defense Lawyers Association, of Christian & Small LLP, Birmingham; and Melody H. Eagan, president of Alabama Defense Lawyers Association, of Lightfoot Franklin White LLC, Birmingham, for amicus curiae Alabama Defense Lawyers Association, in support of the appellants.
   MAIN, Justice.

Mary Leila Beasley Schaeffer and the estate of Emma Glass Beasley (hereinafter collectively referred to as “the Beasley branch”) appeal from a judgment entered on a jury verdict, awarding compensatory damages and punitive damages on mismanagement-of-trust and conversion claims in an action by William M. Poellnitz, as administrator of the estate of Edwin Glass Young, deceased, Adele Young Som-mers, and Willard P. Young (hereinafter collectively referred to as “the Young branch”). We affirm in part and we reverse in part and render a judgment for the Beasley branch on certain of the Young branch’s claims.

I. Facts and Procedural History

This case involves the management of a family trust, the Westwood Management Trust (“the Trust”); the disposition of personal property after the death of a family member, Edwin Glass Young (“Eddie”); and claims of moneys owed between family members. The corpus of the Trust consists of family farmland, called Westwood (“Westwood”), located in Uniontown, Perry County, comprising 541 acres, and an antebellum house situated on Westwood. Two sisters, Emma Glass Beasley (“Emma”) and Lyle Glass Young (“Lyle”), inherited Westwood, including the house, as well as two adjoining properties called Shields, consisting of 329 acres (“the Shields property”), and Davidson, consisting of 598 acres (“the Davidson property”), from their parents, Julius Franklin Glass and Adele Davidson Ellis Glass, who died in 1964 and 1988, respectively. Emma had two daughters, Ellis Beasley Long (“Ellis”) and Mary Leila Beasley Schaeffer (“Mary”). Lyle had three children, Eddie-, who died in 2005, Willard P. Young (“Billy”), and Adele Young Sommers (“Adele”).

Members of the Beasley branch and the Young branch have resided at Westwood sporadically throughout the years. In particular, in the 1940s, Emma, along with her two daughters, Ellis ■ and Mary, and Emma’s sister, Lyle, along with her children, Eddie, Billy, and Adele, lived at Westwood. In 1951, Emma, Ellis, and Mary moved to Houston, Texas, while various members of the Young branch continued to reside at Westwood.

In August 1964, Billy left Westwood to enter college, and he never returned to live at Westwood. In the mid 1960s, Mary and Ellis returned to Westwood and managed the family farms, the primary product of which was cotton, and ran the cotton gin on the property while their mother, Emma, remained in Texas to care for her mother and her sister, Lyle, who both had moved to Texas to live with her. Eddie assisted his cousins, Mary and Ellis, in running the cotton gin in 1969 and 1970 before he married and moved to Louisiana. Adele moved from Westwood around 1970 and did not return.

Lyle, who had moved to Texas to live with Emma in 1968, developed substantial medical problems while there that prevented her from working. Emma cared for Lyle while she lived with her. Lyle’s children did not assist with their mother’s care.

Lyle’s children visited her infrequently while she was living in Texas with Emma. During the time Lyle lived in Texas — from 1968 until her death in 1996 — Eddie lived in Louisiana until 1993, when he returned to Alabama; Billy lived in California, where he had resided since 1972; and Adele, after leaving Westwood around 1970, lived in Texas for a brief period, where she completed high school and some college, and subsequently moved to Florida.

In December 1995, Emma employed an attorney in Texas to draft the Trust. The primary purpose of the Trust was to protect, maintain, and provide for Emma and Lyle during their lifetimes. The Trust instrument provided that Emma’s and Lyle’s children held a beneficiary interest in the corpus of the Trust, contingent upon the death of both Emma and Lyle. Emma’s and Lyle’s children would receive distributions, following the deaths of both Emma and Lyle, only if there was sufficient net income each fiscal year to make proper distributions. Emma was named the trustee of the Trust. On December 21, 1995, Emma and Lyle executed the Trust instrument. That same day, Emma and Lyle deeded Westwood, including the house, to the Trust. Lyle died in June 1996. Lyle’s will provided that all of her assets were devised to her 3 children— Eddie, Billy, and Adele.

In May 1996, before Lyle’s death, Billy initiated a partition-of-land lawsuit in Mar-engo County concerning the Shields property and the Davidson property. In January 1998, the Beasley branch and the Young branch entered into a mediated settlement agreement. The Shields property and the Davidson property were reapportioned and both the Beasley branch and the Young branch received 433 acres of land. At that time, the Young branch agreed to reimburse the Beasley branch $28,000 incurred for the caretaking of their mother, Lyle, upon the sale of their portion of the land.

Eddie, who had returned to Uniontown from Louisiana around 1993, lived at the Westwood house for a short period in 1995 before moving to the cotton-gin office, where he remained until he died there on February 3, 2005. While Eddie was living in Uniontown from 1993 until his death in 2005, he did not pay rent but performed various tasks on and for Westwood. Eddie’s body was removed from the cotton-gin office on February 5, 2005. Because the cotton-gin office had been burglarized on several occasions, Mary locked the cotton-gin office after Eddie’s body was removed.

The day after Eddie’s body was removed, Mary, who had moved back into the Westwood house in 1999 with her mother, Emma, inventoried the items in the cotton-gin office and took them to Westwood. That same day, Mary made arrangements for Eddie’s funeral and paid the initial $3,000. Eddie’s funeral expenses totaled $8,966. Although Adele agreed to be responsible for the costs of Eddie’s funeral, Adele never paid any portion of those costs. Mary and Emma paid the remaining funeral expenses, and the funeral home assigned to Mary its claim against Eddie’s estate for those expenses.

In May 2005, Poellnitz informed Mary that he had been appointed administrator of Eddie’s estate, and he requested a time when he could take possession of Eddie’s personal items. Mary delivered the items to Poellnitz’s office. When Poellnitz filed the complaint in this matter, he claimed that several guns, numerous tools, furniture, china, sterling silver, antique fly-fishing rods, and a gas grill belonging to Eddie remained in Mary’s possession. The complaint alleged that the items had an approximate value of $25,000.

Mary responded in detail regarding the items Poellnitz claimed belonged to Eddie. Mary stated, in the alternative, that the items were not at Westwood; that they had been paid for by, and belonged to, Westwood; or that the items had previously been stolen from the cotton-gin office. At trial, Mary testified that, after this action was filed in May 2005, she had been instructed by her attorney not to return any of the items still in her possession until the issues could be resolved in the litigation.

In addition to the items that Emma and Mary had removed from the cotton-gin office, Eddie had furniture at the West-wood house that had been left there by him. After Eddie died, according to Mary, Poellnitz agreed that the Beasley branch could purchase the furniture for an agreed-upon price of $1,000. Because Eddie’s estate owed the Beasley branch quite a bit of money, Mary agreed to give a $1,000 credit against the debt owed in exchange for the furniture.

On May 13, 2005, the Young branch sued Emma, individually and as trustee, and Mary, individually, alleging conversion of Eddie’s personal property and demanding an accounting of the Trust. The Beasley branch answered the complaint and denied the allegations. The Beasley branch filed a counterclaim seeking recovery on assorted debts totaling $79,395 allegedly owed by the Young branch to the Beasley branch and attaching various documents evidencing those debts. In its counterclaim, the Beasley branch also named Veronica Young, Billy’s wife, as a counterclaim defendant, alleging that certain sums were owed to the Beasley branch and the Trust by both Billy and Veronica.

The Young branch then amended its complaint, alleging, in addition to another claim not relevant to this appeal, mismanagement of the Trust by the trustee, Emma, and seeking a one-half interest in the furnishings and other family heirlooms in the Westwood house, and answered the counterclaim, generally denying the allegations and asserting affirmative defenses. The Young branch filed a second amended complaint, seeking, among other things, an award of compensatory and punitive damages under theories of conversion and mismanagement of the Trust. The Beasley branch filed a motion to dismiss, which was denied.

Ellis returned to Westwood in September 2008, while the litigation was pending. Emma, the trustee, died on June 12, 2010. Ellis was named personal representative of Emma’s estate. Mary and Adele became cotrustees of the Trust pursuant to the Trust instrument.

The case was eventually tried before a jury from May 25 to June 2, 2011, on the Young branch’s mismanagement-of-trust and conversion claims, as well as their claims for an accounting and for an award of a one-half interest in the furnishings and other heirlooms in the Westwood house. The jury also considered the Beasley branch’s counterclaims against the Young branch for various money loaned to the Young branch. The jury jointly awarded the Young branch $63,915.18 against Emma’s estate and Mary on the claim alleging mismanagement of the Trust. The jury awarded the Young branch $3,645 on its claim of conversion of Eddie’s property. The jury jointly awarded the Young branch one-half of the furnishings and heirlooms in the Westwood house, which the jury valued at $172,000 in total. On the counterclaims the jury exonerated Adele and Eddie’s estate but awarded jointly to Emma’s estate and Mary $8,043.48 against Billy and an additional $8,043.48 against his wife, Veronica. The jury also returned a verdict in favor of the Young branch on then’ claims for punitive damages, awarding $200,000 to each of Eddie’s estate, Billy, and Adele and assessing those amounts collectively against the Beasley branch.

On June 5, 2011, the trial court removed Mary and Adele as cotrustees of the Trust and removed Poellnitz as the administrator of Eddie’s estate. On June 14, 2011, the trial court entered a judgment on the jury’s verdict. The Beasley branch filed postjudgment motions. On August 22, 2011, the trial court appointed William Mackey as both administrator of Eddie’s estate and trustee of the Trust. On September 7, 2011, the Beasley branch filed motions for a judgment as a matter of law (“JML”), a new trial, or a remittitur, which the trial court denied. In its November 23, 2011, postjudgment order, however, the trial court amended the jury’s punitive-damages award to assess $100,000 on behalf of each of Eddie’s estate, Billy, and Adele against Emma’s estate, and $100,000 on behalf of each of Eddie’s estate, Billy, and Adele against Mary. The Beasley branch appealed.

II. Standards of Review

A. Motion for a JML

“When reviewing a ruling on a motion for a JML, this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). The nonmovant must have presented substantial evidence in order to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmov-ant and entertains such reasonable inferences as the jury would have been free to draw. Id. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala. 1992).”

Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1152 (Ala. 2003).

B. Motion for a New Trial

“ ‘ “It is well established that a ruling on a motion for a new trial rests within the sound discretion of the trial judge. The exercise of that discretion carries with it a presumption of correctness, which will not be disturbed by this Court unless some legal right is abused and the record plainly and palpably shows the trial judge to be in error.” ’

“Curtis v. Faulkner Univ., 575 So.2d 1064, 1065-66 (Ala.1991) (quoting Kane v. Edward J. Woemer & Sons, Inc., 543 So.2d 693, 694 (Ala.1989), quoting in turn Hill v. Sherwood, 488 So.2d 1357, 1359 (1986)).”

Baptist Med. Ctr. Montclair v. Whitfield, 950 So.2d 1121, 1125-26 (Ala.2006).

C. Punitive Damages

This Court “review[s] the trial court’s award of punitive damages de novo, with no presumption of correctness.” Mack Trucks, Inc. v.. Witherspoon, 867 So.2d 307, 309 (Ala.2003) (citing Acceptance Ins. Co. v. Brown, 832 So.2d 1, 24 (Ala.2001)). See also § 6-11-23, Ala.Code 1975 (“No presumption of correctness shall apply as to the amount of punitive damages awarded by the trier of the fact.”).

III. Analysis

The Beasley branch essentially presents five issues on appeal. First, the Beasley branch argues that it is entitled to a JML on the mismanagement-of-trust claim. Second, the Beasley branch argues that it is entitled to a JML on the conversion claim. Third, as to the punitive damages, the Beasley branch argues that punitive damages were not warranted. Alternatively, the Beasley branch argues that the trial court improperly apportioned the punitive damages. Regardless, it says, the punitive damages are excessive and the award must be vacated or remitted. Fourth, the Beasley branch argues that it is entitled to a JML on the Young branch’s claim to a one-half ownership interest in the furnishings and heirlooms at West-wood or to a reduction of the value of those furnishings and heirlooms. Last, the Beasley branch argues that it was entitled to a JML on all of its counterclaims for moneys loaned to the Young branch. As part of its argument on its counterclaims, the Beasley branch complains that the trial court cannot undo the Marengo County judgment in the amount of $28,000. We consider these in turn.

A. Mismanagement of the Trust

Typically, a mismanagement-of-trust claim requires the beneficiaries to produce evidence “showing what [the trustee] should have done, how [the trustee] failed to do so, and how any such failure proximately caused damage to the trust and in what amount.” See Regions Bank v. Lowrey, 101 So.3d 210, 213-14 (Ala. 2012). However, in this case, the Trust instrument, which provides that it is governed by Texas law, directed that “[t]he Trustee be saved harmless from any liability for any action which such Trustee may take, or for the failure of such Trustee to take any action, if done in good faith and without gross negligence.” Consequently, the Young branch had to prove gross negligence on the part of the trustee. Gross negligence was defined at trial as “the intentional failure to perform a manifested duty in reckless disregard of the consequences as affecting the life and property of another.” See, e.g., U-Haul Int'l Inc. v. Waldrip, 380 S.W.3d 118, 137-38 (Tex. 2012); Merchants’ Bank of Mobile v. Zadek, 203 Ala. 518, 520, 84 So. 715, 717 (1919).

Emma’s estate and Mary first argue that the trial court erred when it denied their motions for a JML because, they say, the Young branch failed to prove gross negligence. The Young branch had alleged that it did not receive substantial distributions from the Trust or account-ings and that those failures represented gross negligence. The Young branch had also criticized trust-related payments shown in the Trust’s financial statements and had alleged that the trustee improperly commingled funds.

The evidence showed that Emma served as trustee until her death in June 2010. Mary served as the bookkeeper for the Trust at Emma’s direction. Mary subsequently served as cotrustee with Adele after Emma died and until she and Adele were removed as cotrustees by the trial court.

As to the mismanagement-of-trust claim against Mary, based on the record before us, we conclude that there is no evidence of mismanagement of the Trust by Mary for the limited'time she served as cotrustee with Adele. All the evidence at trial concerned the time Emma served as the trustee. Consequently, we conclude that, as a matter of law, the Young branch’s mismanagement-of-trust claim against Mary should not have been submitted to the jury. Mary, was entitled to a JML as to that claim. Therefore, we reverse the trial court’s judgment against Mary on the mismanagement-of-trust claim and render a judgment in her favor on that claim.

Next, we turn to the mismanagement-of-trust claim against Emma. First, regarding distributions from the Trust, the Trust instrument directed Emma to distribute income from Lyle’s share, after Lyle’s death in 1996, yearly to Eddie, Billy, and Adele in equal thirds. However, the Trust explicitly provided that the distributions depended upon whether there was any income remaining in that particular year after payment of trust-related expenses. The evidence failed to demonstrate that' there was any income left to distribute to the beneficiaries of the Trust after the expenses were paid. Instead, the evidence showed that Emma actually put substantial amounts of her own money into the Trust to keep Westwood operational. Accordingly, there was no evidence indicating that Emma acted with gross negligence in declining to make any distributions from the Trust to the Young branch.

Second, as to accountings, the evidence showed that yearly accounting statements showing income and expenses of the Trust were prepared every year and were sent to the Internal Revenue Service (“IRS”) with the yearly tax returns for the Trust. In addition, Eddie, Billy, and Adele were provided with annual statements from the Trust to use in preparing their personal tax returns. The evidence also indicated that the Young branch never requested additional accountings. We cannot conclude, on the record before us, that there was any evidence of gross negligence with regard to the yearly accountings that Emma provided the Young branch.

Third, regarding improper non-trust-related expenses, the Young branch again failed to provide evidence supporting its claim. The accounting records do not demonstrate that money from the Trust was spent for improper, non-trust-related purposes. Instead, Mary’s testimony indicated that she kept detailed records, and she explained every expense.

Similarly, as to the allegations of commingling, although Emma used one business account for both the Trust and her personal business activities, that same account was used before the Trust was established to manage both Emma’s personal property and the family properties. There was no evidence indicating that this practice in any way harmed the Trust or diminished the corpus of the Trust. Instead, the Trust funds were always accounted for separately and were traceable in the Trust record books. Accordingly, there is no evidence indicating that Emma acted with gross negligence in continuing this longstanding family practice of using one account for various properties.

We conclude that the Young branch failed to present sufficient evidence showing that Emma mismanaged the Trust. Because the evidence does not support a finding of mismanagement of the Trust, the trial court erred in denying the motion for a JML filed by Emma’s estate as to the Young branch’s mismanagement-of-trust claim. Therefore, that claim should not have been submitted to the jury, and the trial court’s order denying Emma’s estate’s motion for a JML is due to be reversed. We reverse the trial court’s judgment on the mismanagement-of-trust claim and render a judgment in favor of Emma’s estate.

B. Conversion

For a conversion claim to stand,

“ ‘there must be a wrongful taking or a wrongful detention or interference, an illegal assumption of ownership, or an illegal use or misuse of another’s property. Covington v. Exxon Co. U.S.A., 551 So.2d 935, 938 (Ala.1989). “The gist of the action is the wrongful exercise of dominion over property in exclusion or defiance of a plaintiffs rights, where said plaintiff has general or special title to the property or the immediate right to possession.” Ott v. Fox, 362 So.2d 836 (Ala.1978) (emphasis added).’ ”

Horne v. TGM Assocs., L.P., 56 So.3d 615, 628 (Ala.2010) (quoting Baxter v. South-Trust Bank of Dothan, 584 So.2d 801, 804-05 (Ala.1991)). See Ex parte Anderson, 867 So.2d 1125, 1129 (Ala.2003). Further, “[a] plaintiff must establish that the defendant converted specific personal property to his own use and beneficial enjoyment or that the defendant destroyed or exercised dominion over property to which, at the time of the conversion, the plaintiff had a general or specific title and of which the plaintiff was in actual possession or to which he was entitled to immediate possession.” Rice v. Birmingham Coal & Coke Co., 608 So.2d 713, 714 (Ala.1992).

The conversion claim was brought on behalf of Eddie’s estate concerning Eddie’s personal property located at the cotton-gin office, where he lived before he died, and some furniture located in the Westwood house. The jury returned a verdict against the Beasley branch, both Emma’s estate and Mary, for $3,645 in compensatory damages. Initially, based on the record before us, we must conclude that there was no evidence indicating that Emma converted Eddie’s personal property. Instead, the evidence showed that only Mary was involved in the disposition of Eddie’s personal property. Consequently, the Young branch failed to present evidence from which a jury could find that Emma had converted Eddie’s property. Because the evidence does not support a finding of conversion against Emma, the trial court erred in denying the motion for a JML filed by Emma’s estate as to the conversion claim against her. Therefore, the conversion claim against Emma’s estate should not have been submitted to the jury, and the trial court’s order denying the motion for a JML as to Emma’s estate is due to be reversed. We therefore render a judgment in favor of Emma’s estate on the conversion claim.

We, however, must consider the conversion claim as to Mary. Mary argues that the trial court erred in denying a JML on the conversion claim as to her because, she says, her refusal to surrender Eddie’s personal property was reasonable and qualified. Whether there is a reasonable qualified refusal to surrender personal property presents a jury question. White v. Drivas, 954 So.2d 1119, 1124 (Ala.Civ.App.2006). See Gabrielson v. Healthcorp of Eufeula, Inc., 628 So.2d 411, 414 (Ala.1993). In this case, there was sufficient evidence from which a jury could have found that Mary had converted Eddie’s personal property. Thus, the trial court properly submitted the conversion claim as to Mary to the jury. The jury rejected the qualified-refusal argument and returned a verdict in the amount of $3,645. Because the compensatory-damages award was joint and several in nature and because there is sufficient evidence indicating that Mary converted Eddie’s personal property to support the jury verdict, we affirm the judgment on the conversion claim against Mary.

C. Punitive Damages

Because we conclude that the trial court erred in denying the Beasley branch’s motions for a JML on the mismanagement-of-trust claim, we reverse the award of punitive damages on that claim. Thus, we need only consider whether the punitive damages can stand against Mary on the conversion claim. We conclude that we must reverse the punitive-damages award against Mary on the conversion claim.

“Conversion is an intentional tort.” Johnson v. Northpointe Apartments, 744 So.2d 899, 904 (Ala.1999). “Intentional torts ordinarily carry punitive damages, if the jury chooses to award them.” Tillis Trucking Co. v. Moses, 748 So.2d 874, 887 n. 12 (Ala.1999). “Punitive damages are recoverable in a conversion case when the evidence shows legal malice, willfulness, insult, or other aggravating circumstances.” Schwertfeger v. Moorehouse, 569 So.2d 322, 324 (Ala.1990). See Ex parte Norwood Hodges Motor Co., 680 So.2d 245, 249 (Ala.1996).

To warrant punitive damages under the conversion claim, the Young branch must present clear and convincing evidence indicating that Mary “consciously or deliberately engaged in oppression, fraud, wantonness, or malice with regard” to the Young branch, § 6 — 11—20(b)(1), Ala.Code 1975. There is no clear and convincing evidence indicating that Mary possessed such intent or knowledge. Therefore, there was no basis for an award of punitive damages on the conversion claim. We, therefore, reverse the judgment awarding punitive damages to the Young branch on the mismanagement-of-trust claim and the conversion claim.

D. Furnishings and Heirlooms in Westwood House

The Beasley branch argues that the Westwood furnishings and heirlooms were a part of the Trust, as was the house itself, and, it says, it was entitled to a JML on the Young branch’s claim to one-half of the furnishings and heirlooms in the West-wood house. The Beasley branch also argues that the jury’s assessment of the value of the furnishings and heirlooms based upon an appraisal was in error.

Our review of the record indicates that all evidence as to ownership of the furnishings and heirlooms in the Westwood house proved that the Young branch — Eddie’s estate, Billy, and Adele — had an undivided one-half interest in the furnishings and heirlooms at Westwood. The record does not show that the furnishings and heirlooms of Westwood were part of the Trust. Instead, the Young branch received, under Lyle’s will, a one-half undivided interest in the furniture, furnishings, and personal property in the Westwood house. Regardless, assuming without deciding that the furnishings and heirlooms were a part of the Trust, the Young branch was entitled to a distribution of their share upon the death of the remaining trust beneficiary, Emma, in June 2010.

In this case, the jury determined that the Young branch had a one-half interest in the furniture, furnishings, jewels, portraits, and personal items. The jury also determined that the total value of the personal property at Westwood was $172,000. The jury heard testimony from a number of experts concerning the value and uniqueness of the personal property and received into evidence an appraisal. Therefore, we affirm the trial court’s judgment on the jury’s verdict in that regard.

E. Counterclaims for Money Loaned

The Beasley branch presented counterclaims against Eddie’s estate, Billy, and Adele, as well as a claim against Veronica, Billy’s wife. At trial, the Beasley branch submitted documents and exhibits to support its claims. Specifically, the Beasley branch claimed that Eddie’s estate owed the Beasley branch $28,304.06, that Billy owed $67,331.92, and that Adele owed $5,317.97. The Beasley branch claimed that Veronica owed a portion of the amount owed by her husband, Billy. The Beasley branch argued that these amounts included the judgment in the amount of $28,000 resulting from the 1998 suit for partition filed by Billy in Marengo County. The jury reviewed and considered the documents submitted by the Beasley branch and entered a $0 verdict on the counterclaims against Eddie’s estate and Adele. On the counterclaims against Billy and Veronica, the jury entered a verdict of $8,043.48 against Billy and $8,043.48 against Veronica.

The Beasley branch argues that the jury’s verdict on its counterclaims did not nullify the $28,000 Marengo County judgment against the Young branch. The Beasley branch also argues that it was entitled to a JML in its favor on its counterclaims for money loaned to the Young branch.

The Beasley branch’s argument, however, ignores the fact that the jury had before it documents and exhibits supporting its claims, including the Marengo County judgment in the amount of $28,000. The Beasley branch cannot now complain that it was error for the jury to consider the $28,000 judgment. “A jury’s verdict is presumed correct, and that presumption is strengthened by the trial court’s denial of a motion for a new trial. Wal-Mart Stores, Inc. v. Goodman, 789 So.2d 166 (Ala.2000).” Cochran v. Ward, 935 So.2d 1169,1176 (Ala.2006). Further, our review of the record indicates that the jury considered in detail the counterclaims for money loaned. Consequently, we affirm the trial court’s judgment on the jury verdict on the Beasley branch’s counterclaims.

IV. Conclusion

The trial court erred in denying the Beasley branch’s motions for a JML as to the mismanagement-of-trust claim. We, therefore, reverse the judgment as to the mismanagement-of-trust claim and render a judgment in favor of Emma’s estate and Mary on that claim. Because the trial court should have granted the Beasley branch’s motions for a JML on the mismanagement-of-trust claim, we reverse that portion of the judgment awarding punitive damages on the jury’s finding of mismanagement of trust.

The trial court also erred in denying the motion for a JML filed by Emma’s estate as to the conversion claim. We, therefore, reverse the judgment as to the conversion claim against Emma’s estate and render a judgment in favor of Emma’s estate on that claim. We affirm the judgment as to the conversion claim against Mary, including the amount of the compensatory damages awarded the Young branch on that claim. However, because there is no clear and convincing evidence that Mary “consciously and deliberately engaged in oppression, fraud, wantonness, or malice,” we reverse the trial court’s judgment insofar as it awarded punitive damages on the conversion claim against Mary, as well as against Emma’s estate. We affirm the judgment as to the Young branch’s one-half interest in the furnishings and heirlooms in the Westwood house and on the Beasley branch’s counterclaims for money loaned.

AFFIRMED IN PART, REVERSED IN PART, AND JUDGMENT RENDERED.

STUART, BOLIN, PARKER, SHAW, WISE, and BRYAN, JJ., concur.

MOORE, C.J., and MURDOCK, J, concur specially.

MOORE, Chief Justice

(concurring specially).

I concur fully with the main opinion. I write specially to point out that even were the plaintiffs — the Young branch — entitled to a judgment in their favor on the mismanagement-of-trust claim, the punitive-damages award would still be subject to reversal.

I. The jury’s failure to apportion punitive damages

Because an appellate court reviews a punitive-damages award de novo, no deference is given to a judgment imposing such an award.

“(a) On appeal, no presumption of correctness shall apply to the amount of punitive damages awarded.
“(b) The appellate court shall independently reassess the nature, extent and economic impact of such an award and reduce or increase the award if appropriate in light of all the evidence.”

§ 6-11-24, Ala.Code 1975. See also § 6-11 — 21(i), Ala.Code 1975 (noting the duty of the appellate courts “to scrutinize all punitive damage awards, ensure that all punitive damage awards comply with applicable procedural, evidentiary, and constitutional requirements, and to order re-mittitur where appropriate”). Further, “no defendant shall be liable for any punitive damages unless that defendant has been expressly found by the trier of fact to have engaged in conduct ... warranting punitive damages, and such defendant shall be liable only for punitive damages commensurate with that defendant’s own conduct.” § 6-ll-21(e), Ala.Code 1975.

Citing § 6-11-21(e), a leading treatise on damages states: “The jury must apportion punitive damages against the defendants based on culpability of conduct.” Jenelle Mims Marsh, Alabama Law of Damages § 4.3 (6th ed.2012) (emphasis added). Elaborating on § 6-ll-21(e), the treatise further states: “Joint tortfeasors are not jointly and severally liable for an award of punitive damages. By statute, a defendant is liable ‘only for punitive damages commensurate with the defendant’s own conduct.’ Thus, the trial court fact finder must apportion punitive damages among the joint tortfeasors.” Id. § 4.7 (footnotes omitted; emphasis added). This Court has stated the principle as follows: “Under the pertinent provisions of the Alabama Code, as amended in 1999, a defendant is liable ‘only for punitive damages commensurate with that defendant’s own conduct’ — that is, joint tortfea-sors are not jointly and severally liable for an award of punitive damages.” Boles v. Parris, 952 So.2d 364, 366 (Ala.2006) (citing § 6—11—21(e)). See also BMW of North America, Inc. v. Gore, 517 U.S. 559, 575, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996) (“Perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct.” (emphasis added)).

Under the common principle stated in statute, caselaw, and the relevant treatise quoted above, a judgment awarding punitive damages that does not apportion those damages individually against each defendant must be vacated as contrary to law. In this case the jury awarded $200,000 in punitive damages to each member of the Young branch but did not apportion those awards against the defendants — the Beasley branch — individually. Because the jury did not expressly allocate the award of punitive damages according to the particular degree of liability of each member of the Beasley branch, the punitive-damages verdict was contrary to law.

II. The trial court’s improper rewriting of the verdict

In its postjudgment order, the trial court, styling its action a remittitur, apportioned the punitive-damages verdict to assess $300,000 to each defendant: “The Court hereby modifies or clarifies said Judgment resulting in a remittitur or diminution in the punitive damages arguably assessed against each Defendant.... ” The Court further explained that its recharac-terization of the verdict would make each defendant liable for only $300,000 rather than the entire $600,00 under the jury’s unapportioned verdict. “By this modification or remittitur, each Defendant owes One Hundred Thousand and No/100s ($100,000.00) Dollars in punitive damages to each Plaintiff, and is liable for only a total of Three Hundred Thousand and No/ 100s ($300,000.00) Dollars in punitive damages.” The court, though styling its action a remittitur, did not actually reduce the punitive-damages verdict, which still remained at $600,000. Thus, its action was not a remittitur of the punitive-damages award, only a reapportionment of the verdict to eliminate joint and several liability.

A trial court may not rewrite a verdict to change its substance.

“It has long been settled that a court’s right to amend a jury verdict after discharge of the jury is limited to matters of form or clerical errors which are apparent by the record and does not extend to matters of substance required to be passed upon by the jury.”

Alexiou v. Christu, 285 Ala. 346, 349, 232 So.2d 595, 597 (1970). “If the court should aid the verdict of the jury which is faulty as to substance, without the consent and concurrence of the jury, it would then become not the verdict of the jury, but of the court.” W.T. Rawleigh Co. v. Hannon, 32 Ala.App. 147, 149, 22 So.2d 603, 604 (1945).

Although Rule 60(a), Ala. R. Civ. P., permits a trial court to correct clerical errors, “the Rule 60(a) motion can only be used to make the judgment or record speak the truth and cannot be used to make it say something other than what was originally pronounced.” Committee Comments to Rule 60(a). By changing the jury’s pronouncement from joint and several liability to individual liability, the trial court, even if presumed to have acted sua sponte under Rule 60(a), exceeded its authority. By calling its rewriting of the verdict a remittitur, the trial court admitted that it was changing the verdict. However, because its change was not in fact a remittitur, the alteration of the verdict “extend[ed] to matters of substance required to be passed upon by a jury.” Great Atl. & Pac. Tea Co. v. Sealy, 374 So.2d 877, 888 (Ala.1979). Because, “[u]pon demand of a jury trial, the plaintiff was entitled to have his cause adjudicated by a jury verdict,” Hood v. Ham, 342 So.2d 1317, 1318 (Ala.1977), the trial court had no power “to render a different decree.” Great Atl. & Pac. Tea Co., 374 So.2d at 883.

III. Effect of Emma’s death on the punitive-damages verdict

Emma died in June 2010; judgment was rendered a year later in June 2011. “In almost all jurisdictions, it is held that punitive damages may not be awarded against the estate of a wrongdoer who has died prior to the entry of judgment.” Alabama Law of Damages § 4:7. Because the dead can be neither punished nor deterred, assessing punitive damages against a deceased person seems problematical. See Green Oil Co. v. Hornsby, 539 So.2d 218, 222- (Ala.1989) (noting that “the purpose of punitive damages is not to compensate the plaintiff but to punish the wrongdoer and to deter the wrongdoer and others from committing similar wrongs in the future”). A century ago, this -Court stated that, “when the wrongdoer dies before the action is brought to trial, and the action survives against his personal representative, only compensatory damages may be recovered.” Meighan v. Birmingham Terminal Co., 165 Ala. 591, 599, 51 So. 775, 778 (1910). Although a federal case cited by the plaintiffs distinguished this holding, Ellis v. Zuck, 546 F.2d 643, 644 (5th Cir. 1977), its rationale was that the principle applied in wrongful-death cases should be extended to all punitive-damages cases. However, as noted, wrongful-death cases are sui generis. This Court has held more recently that a bank placed in receivership is not subject to punitive damages because the purposes of punishment and deterrence could not be accomplished against a defunct entity. Resolution Trust Corp. v. Mooney, 592 So.2d 186, 190 (Ala.1991). Thus, punitive damages were not available against Emma’s estate.

TV. Conclusion

Even if the jury verdict on the mismanagement-of-trust claim were correct, the award of punitive damages would still have to be set aside.

MURDOCK, J., concurs.

      . Following appellate mediation, this case was assigned to Justice Main on July 24, 2013.

      . Emma and Lyle had a brother who was killed in World War II. At the time of his death, he was not married and did not have any children.

      . Mary Leila Beasley Schaeffer had one son, Kurt, who died in an automobile accident in June 2008. Kurt had one child, a daughter, Juliet Alexandra Schaeffer, who was six years old at the time of trial and who was living with her mother in Kansas.

      .Emma’s husband, James Samuel Beasley, Jr., died around 1950.

      . Ellis filed a motion for substitution after she was appointed personal representative. The trial court entered an order granting Ellis’s motion for substitution.

      . The Beasley branch’s counterclaim alleged a claim against Billy’s wife, Veronica, for money loaned.

      . The Beasley branch filed a motion to vacate the trial court’s appointment of Mackey as trustee, arguing that the Trust expressly listed Emma's daughter, Ellis, as successor trustee in a scenario such as this one. The trial court later granted the motion to vacate in light of an agreement of the parties, following a temporary remand by this Court for the purpose of giving the trial court jurisdiction.

      . The parties agree that Texas trust law was applicable to the issues in this matter relating to the Trust.

      . Wrongful-death actions are the sole exception. Boles v. Parris, 952 So.2d at 366-68.

      . A remittitur may be made only in the context of considering a motion for a new trial. "The court may, on motion for new trial, require a remittitur as a condition to the overruling of the motion for new trial....” Rule 59(f), Ala. R. Civ. P. In its postjudgment order the court does not mention the term "new trial,” nor does it state that the Young branch must accept the "remittitur” or face a new trial.

      . Again, wrongful-death actions are an exception. § 6-5-462, Ala.Code 1975.