author: PER CURIAM. MOORE, Chief Justice

text:
    Ex parte Robert BAKER and Sheila Baker. (In re Robert Baker and Sheila Baker v. Larry Heath Miller). Ex parte Kenneth Cooper and Barbara Cooper. (In re Kenneth Cooper and Barbara Cooper v. Larry Heath Miller).
    1120298 and 1120530.
    Supreme Court of Alabama.
    Dec. 20, 2013.
    Sara J. Senesac, Birmingham, for petitioners Robert Baker and Sheila Baker.
    Roger C. Appell, Birmingham, for petitioners Kenneth Cooper and Barbara Cooper.
    Wendy Brooks Crew and Alyson Hood-Rains of Crew & Howell, P.C., Birmingham, for respondent.

       Justice Bryan was a member of the Court of Civil Appeals when that court considered this case.

   PER CURIAM.

1120298 — WRIT QUASHED. NO OPINION.

1120580 — WRIT QUASHED. NO OPINION.

STUART, BOLIN, PARKER, SHAW, and MAIN, JJ., concur.

MOORE, C.J., and MURDOCK, J., dissent.

BRYAN, J., recuses himself.

MOORE, Chief Justice

(dissenting).

Larry Heath Miller was awarded attorney fees from Robert Baker and Sheila Baker and Kenneth Cooper and Barbara Cooper after the Bakers and the Coopers intervened in a dispute between Miller and his wife during divorce proceedings concerning custody of their child. The Bakers and the Coopers appealed. The Court of Civil Appeals affirmed. After granting the Bakers’ and the Coopers’ petitions for the writ of certiorari, the Court requested supplemental briefing from the parties as to whether Ex parte Handley, 460 So.2d 167 (Ala.1984), upon which the trial court appeared to rely for its award of attorney fees, should be overruled. All parties responded in the negative. The Court now quashes the writs. Because I believe that Handley dangerously misconstrued the nature of equitable power and because I believe “ ‘ “[o]ur duty is to enunciate the law on the record facts” ’ ” even though “ ‘ “none of the parties declaimed the applicable law,” ’ ” Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 960 (Ala.2004) (quoting Forshey v. Principi, 284 F.3d 1335, 1357 n. 20 (Fed.Cir.2002), quoting in turn Empire Life Ins. Co. of America v. Valdak Corp., 468 F.2d 330, 334 (5th Cir.1972)), I respectfully dissent.

I. Facts and Procedural History

Andrea Miller (“the wife”) filed for divorce from Larry Heath Miller (“the husband”). The husband counterclaimed for divorce and requested that the trial court order the wife to pay his attorney fees. The wife’s father and stepmother, Kenneth Cooper and Barbara Cooper (“the maternal grandparents”), moved to intervene and petitioned for custody, alleging unfitness, instability, alcohol abuse, and drug abuse by both the husband and wife. The trial court granted their motion to intervene. Subsequently, the husband’s mother and stepfather, Robert Baker and Sheila Baker (“the paternal grandparents”), also moved to intervene and petitioned for custody for similar reasons. The trial court granted the paternal grandparents’ motion to intervene as well.

Upon the final judgment of divorce, the trial court awarded sole custody of the child to the husband, awarded visitation to the mother and to the maternal grandparents and the paternal grandparents, and required the maternal grandparents and the paternal grandparents each to pay $5,000 in attorney fees to the husband’s attorneys. In his objection to the maternal grandparents’ motion to intervene, the husband had claimed that he was unable to pay his attorneys and had requested attorney fees from the maternal grandparents to defend against their petition for custody. The husband also testified at trial that he was unable to pay his attorneys. The trial court’s order did not specify the legal basis for awarding attorney fees to the husband.

The maternal grandparents and the paternal grandparents (collectively “the grandparents”) appealed but challenged only the award of attorney fees. The Court of Civil Appeals affirmed the judgment of the trial court without an opinion. The maternal grandparents and the paternal grandparents then petitioned separately for a writ of certiorari, which this Court granted and now quashes.

II. Standard of Review

“This Court has stated that “[t]he determination of whether an attorney fee is reasonable is within the sound discretion of the trial court and will not be disturbed ... absent an abuse of that discretion.” ’ ” Beal Bank, SSB v. Schilleci, 896 So.2d 395, 400 (Ala.2004) (quoting State Bd. of E'due. v. Waldrop, 840 So.2d 893, 896 (Ala.2002), quoting in turn Ex parte Edwards, 601 So.2d 82, 85 (Ala.1992)). However, “ ‘ “[questions of law are reviewed de novo.” ’ ” Ruttenberg v. Friedman, 97 So.3d 114,134 (Ala.2012) (quoting Ex parte Terry, 957 So.2d 455, 457 (Ala.2006), quoting in turn Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004)).

III. Discussion

“ ‘ “In Alabama and most other jurisdictions, the general rule is that attorney’s fees and expenses of litigation are not recoverable as damages, in [the] absence of a contractual or statutory duty, other than [by] a few recognized equity principles.” ’ ” Tolar Constr., LEG v. Kean Elec. Co., 944 So.2d 138, 152 (Ala.2006) (quoting Ex parte Burnham, Klinefelter, Halsey, Jones & Cater, P.C., 674 So.2d 1287, 1290 (Ala.1995), quoting in turn Highlands Underwriters Ins. Co. v. Elegante Inns, Inc., 361 So.2d 1060, 1065-66 (Ala.1978)). In Handley, this Court held as a matter of first impression that a trial court “has equitable authority to grant a natural mother attorney’s fees for successfully defending an attempt by paternal grandparents to gain custody or visitation rights to minor children.” Handley, 460 So.2d at 168. I will first examine Hand- ley, and then I will evaluate it by the common-law rules of equity that this Court is bound by statute to respect. § 1-3-1, Ala.Code 1975 (“The common law of England, so far as it is not inconsistent with the Constitution, laws and institutions of this state, shall, together with such institutions and laws, be the rule of decisions, and shall continue in force, except as from time to time it may be altered or repealed by the Legislature.” (emphasis added)).

A. Ex parte Handley

As stated above, Handley stands for the proposition that a trial court has equitable authority to grant a natural mother attorney fees for successfully defending an attempt by grandparents to gain custody of minor children. In Handley, the paternal grandparents sought custody of their grandchildren, claiming that it was not in the children’s best interests to remain with the mother. Handley, 460 So.2d at 168. The mother counterclaimed, seeking reasonable attorney fees. The trial court denied the grandparents’ request for custody and awarded the mother attorney fees. The Court of Civil Appeals reversed the award of attorney fees to the mother. Id.

On certiorari review, this Court reversed the judgment of the Court of Civil Appeals, holding as a matter of first impression that a trial court has equitable authority to award attorney fees to a mother who has successfully defended against a custody action brought by the grandparents. 460 So.2d at 168, 170. This Court reasoned that such a rule was equitable because “[i]n order to defend her right to the continued custody of her children, which the trial court determined was in their best interest, the mother was completely justified in having counsel to aid her.” 460 So.2d at 169. The Court also cited Brock v. Brock, 281 Ala. 525, 205 So.2d 903 (1968), which upheld an award of attorney fees from one spouse to another in a divorce proceeding. The Handley Court reasoned that the award in Brock “did not turn so much on the relationship of the parties as it did on the fact that the mother found it necessary to hire counsel and resort to judicial proceedings to get relief.” 460 So.2d at 170. The four dissenters, however, argued that the Court’s reliance on Brock was misplaced and accused the majority of creating a new rule as a policy matter instead of recognizing a rule in equity. 460 So.2d at 170-71 (Torbert, C.J., dissenting, joined by Faulkner, Almon, and Shores, JJ.).

B. The Metes and Bounds of Equitable Power

The question whether a trial court has equitable authority to award a prevailing parent attorney fees from unsuccessful intervening grandparents turns on the true meaning of equity. Sir William Blackstone defined equity in this manner:

“But, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the law itself ought likewise to cease with it. An instance of this is given in a case put by Cicero, or whoever was the author of the treatise inscribed to Herennius. There was a law, that those who in a storm forsook the ship, should forfeit all property therein; and that the ship and lading should belong entirely to those who staid in it. In a dangerous tempest all the mariners forsook the ship, except only one sick passenger, who by reason of his disease was unable to get out and escape. By chance the ship came safe to port. The sick man kept possession, and claimed the benefit of the law. Now here all the learned agree, that the sick man is not within the reason of the law; for the reason of making it was, to give encouragement to such as should venture their lives to save the vessel: but this is a merit, which he could never pretend to, who neither staid in the ship upon that account, nor contributed any thing to it’s [sic] preservation.
“From this method of interpreting laws, by the reason of them, arises what we call equity; which is thus defined by Grotius, ‘the correction of that, wherein the law (by reason of its universality) is deficient.’ For since in laws all cases cannot be foreseen or expressed, it is necessary, that when the general decrees of the law come to be applied to particular cases, there should be somewhere a power vested of defining those circumstances, which (had they been foreseen) the legislator himself would have expressed. And these are the cases which, according to Grotius, ‘lex non exacte definit, sed arbitrio boni viri permittit.’

1 William Blackstone, Commentaries *61-62 (footnotes omitted). Thus, Blackstone’s understanding was not that equity gave a judge the power to create a new rule when injustice existed; rather, it gave a judge the power to correct an application of the law when the letter of the law contradicted the spirit of the law. Blackstone was very concerned about the danger of the former view. He continued:

“Equity thus depending, essentially, upon the particular circumstances of each individual case, there can be no established rules and fixed precepts of equity laid down, without destroying its very essence, and reducing it to a positive law. And, on the other hand, the liberty of considering all cases in an equitable light, must not be indulged too far; lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity, though hard and disagreeable, is much more desirable for the public good, than equity without law: which would make every judge a legislator, and introduce most infinite confusion; as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind.”

Id. at *61-62.

Blackstone went on to say that judges could use equitable power when “some collateral matter arises out of the general words, and happens to be unreasonable.” 1 Blackstone, at *91. By the time Blackstone wrote his Commentaries, equity cases were usually limited to cases involving property, as well as cases concerning fraud, trusts, “delivering] from such dangers as are owing to misfortune or oversight,” and cases where more specific relief was required. Id. at *92. Nevertheless, there was one anchor that held equity in its proper place so that it did not drift into the realm of the legislature, and that anchor was the legislature’s intent (or, as Blackstone called it, “the cause which moved the legislator to enact it”).

Blackstone’s definition of equity carried over into American jurisprudence. Shortly after our country’s founding, and within a decade of Alabama’s admission to the Union as a state, Noah Webster defined “equity” as follows:

“In jurisprudence, the correction or qualification of law, when too severe or defective; or the extension of the words of the law to cases not expressed, yet coming within the reason of the law. Hence a court of equity-or chancery, is a court which corrects the operation of the literal text of the law, and supplies its defects, by reasonable construction, and by rules of proceeding and deciding, which are not admissible in a court of law. Equity then is the law of reason, exercised by the chancellor or judge, giving remedy in cases to which the courts of law are not competent.”

Noah Webster, An American Dictionary of the English Language (1828).

Likewise, Justice Joseph Story’s treatise on equity reflected Blackstone’s view. Story described the jurisdiction of an equity court this way: “Perhaps the most general, if not the most precise, description of a Court of Equity, in the English and American sense, is, that it has jurisdiction in cases of rights, recognized and protected by the municipal jurisprudence, where a plain, adequate, and complete remedy cannot be had in the Courts of Common Law.” 1 Joseph Story, Commentaries on Equity Jurisprudence as Administered in England and America § 33 (14th ed. 1918) (emphasis added; footnotes omitted). Story also recognized that it was an erroneous view of equity to fail, to distinguish between the “general sense of equity, which is equivalent to universal or natural justice ... [and] its technical sense, which is descriptive of the exercise of jurisdiction over peculiar rights and remedies.” Id. at § 34 (emphasis added). The United States Supreme Court has shared Justice Story’s concerns about the danger of failing to distinguish between the two senses of equity:

“ ‘If, indeed, a Court of Equity in England did possess the unbounded jurisdiction, which has been thus generally ascribed to it, of correcting, controlling, moderating, and even superseding the law, and of enforcing all the rights, as well as the charities, arising from natural law and justice, and of freeing itself from all regard to former rules and precedents, it would be the most gigantic in its sway, and the most formidable instrument of arbitrary power, that could well be devised. It would literally place the whole rights and property of the community under the arbitrary will of the Judge, acting, if you please, arbi-trio boni judiéis and, it may be, ex aequo et bono, according to his own notions and conscience; but still acting with a despotic and sovereign authority.’”

Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 332,119 S.Ct. 1961,144 L.Ed.2d 319 (1999) (Scalia, J., for the Court) (quoting 1 Joseph Story, supra at 19).

These principles also have been recognized in Alabama jurisprudence. This Court has stated:

“At the adoption of the Code, that system of equity jurisprudence and jurisdiction which, prior to the American revolution, had been built upon wide and rational foundations in England, was part of our system for the administration of justice, except so far as it had been affected by our statutes.... But no part of the Code repeals that system of equity jurisprudence and jurisdiction, which it is conceded on all hands, formed part of our system when the Code was adopted.”

Waldron v. Simmons, 28 Ala. 629, 638 (1856) (emphasis added).

In addition to this Court’s explicit recognition in Waldron of Alabama’s adoption of England’s equity jurisdiction and jurisprudence as it existed before the American Revolution, this Court has also recognized the fundamental principles of that system as discussed by Blackstone and Story. See Tiger Motor Co. v. McMurtry, 284 Ala. 283, 287, 224 So.2d 638, 641 (1969) (“Our decisions do hold that equity jurisdiction cannot be invoked ... when complainant’s remedy at law, either by way of action or defense, is plain, adequate, and complete.”); Smith v. Roney, 182 Ala. 540, 543-44, 62 So. 753, 754 (1913) (“It is, of course, a truism that the system of equity jurisprudence was formed for the purpose of supplementing the law and of furnishing remedies for wrongs for which the law was, by reason of the unbending and inflexible character of its rules, unable to furnish a remedy. It therefore soon became a truism that, as a general rule, a court of equity would withhold relief to any suitor who possessed, for his particular wrong, a plain and adequate legal remedy.”); Saltonstall v. Gordon, 33 Ala. 149, 151 (1858) (citing Justice Story’s treatise for the proposition that equitable jurisdiction over fraud cases requires that the defrauded party must have a legal right, not just a moral right, to know the concealed information); and Henry v. Thompson, Minor 209, 233 (Ala.1824) (opinion of Saffold, J.) (applying “equitable construction” to a statute by interpreting it according to its “true spirit and design”). Thus, the principles espoused above by Blackstone and Story are not new to Alabama’s equity jurisprudence but, rather, provide the foundation for that jurisprudence.

C. Was Handley a Proper Exercise of Equitable Power?

With these principles in mind, I turn to the question whether Handley was decided correctly. Handley could have been decided correctly under only one of two circumstances: if it was decided on a recognized ground of equity, Tolar Constr., 944 So.2d at 152, or if it was a new application of true equitable power. Recognized grounds of equity include the common-fund doctrine, the substantial-benefit doctrine, contempt, and bad-faith litigation. John F. Vargo, The American Rule on Attorney Fee Allocation: The Injured Person’s Access to Justice, 42 Am. U.L.Rev. 1567, 1579-87 (1993); see also State Bd. of Educ. v. Waldrop, 840 So.2d at 897 (citing Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 275, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975) (listing the same exceptions)). None of these grounds were at issue in Handley; therefore Handley cannot be justified by the recognized-grounds-of-equity exception to the American rule, which provides that, subject to certain exceptions, “all litigants, even the prevailing one, must bear their own attorney’s fees.” Black’s Law Dictionary 98 (9th ed. 2009).

The final question is whether Handley was a new application of true equitable power. As discussed above, equitable power is the power to apply a rule according to its spirit when the letter of the rule, by reason of its universality, goes beyond the spirit of the rule. 1 Blackstone, at *61-62. At common law, a party would typically bear his own fees unless a court of equity found that the losing party acted in an abusive manner or a common-law court was authorized to grant fees by statute. Vargo, supra, at 1570-71. Thus, the common-law rule “mirror[s] the American Rule where the ‘loser’ is not responsible for the attorney’s fees of the “winner.’ ” Id. at 1571. Thus, it appears to have been stated correctly that the purpose of the American rule is to treat attorney fees “as an element of court costs.” 20 C.J.S. Costs § 137 (2007). Because each party must pay his or her own costs, it is inconsistent with the purpose of the American rule to require intervening grandparents who lost to pay the attorney fees of the parent who won. Thus, Handley was not a proper application of equitable power.

The grandparents mention briefly for the sake of argument that it might be possible to construe §§ 30-2-50 through -52, Ala.Code 1975, as granting a trial court authority to award attorney fees to a parent from a third party. (See petitioners’ brief, at 8.) If these statutes could be equitably construed in the manner described by the grandparents, then Hand-ley could be upheld. Those statutes provide:

“Pending an action for divorce, the court may make an allowance for the support of either spouse out of the estate of the other spouse, suitable to the spouse’s estate and the condition in life of the parties, for a period of time not longer than necessary for the prosecution of the complaint for divorce.”

§ 30-2-50, Ala.Code 1975.

“If either spouse has no separate estate or if it is insufficient for the maintenance of a spouse, the judge, upon granting a divorce, at his or her discretion, may order to a spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse’s family.”

§ 30-2-51(a), Ala.Code 1975.

“If the divorce is in favor of either spouse for the misconduct of the other spouse, the judge trying the case shall have the right to make an allowance to either spouse out of the estate of either spouse, or not make an allowance as the circumstances of the case may justify, and if an allowance is made, the misconduct of either spouse may be considered in determining the amount; provided, however, that any property acquired pri- or to the marriage of the parties or by inheritance or gift may not be considered in determining the amount.”

§ 30-2-52, Ala.Code 1975.

These statutes have been construed to allow an award of attorney fees “as expense money on like principles as alimony pendente lite.” Smith v. Smith, 57 Ala.App. 615, 330 So.2d 439 (Ala.Civ.App.1976). In Blackstone’s example of the ship, the purpose of the law was to encourage the sailors to preserve the ship. 1 Blackstone, *61-62. In this case, the purpose of §§ 30-2-50 through -52, Ala.Code 1975, is to preserve the marital obligation of support.

The Handley Court rejected the proposition that attorney fees arising out of divorce proceedings rest on the existence of a marital relationship and instead focused on the necessity of the parent to hire counsel. Handley, 460 So.2d at 169— 70. However, in light of the discussion above, it is clear that the Handley Court was mistaken. At best, the Handley Court confused the jurisprudential sense of equity — applying the law according to its purpose — with the generic sense of equity, which is synonymous with natural justice. See 1 Story, supra, at § 34. However, the more likely explanation is that, as the Handley dissenters argued, Handley was a policy-based decision. See Handley, 460 So.2d at 170-71 (Torbert, C.J., dissenting) (arguing that Brock v. Brock, 281 Ala. 525, 205 So.2d 903 (1968), upon which the majority heavily relied, did not support the majority’s argument that necessity instead of the marital relationship was the basis for awarding attorney fees and concluding that “[t]he decision to award attorney fees in a case such as this is a reflection of a change of policy by this Court and should be recognized as such”).

Therefore, because Handley was not justified by the equitable principles on which it was supposedly based, it should be overruled.

IV. Conclusion

Ex parte Handley, 460 So.2d 167 (Ala. 1984), was not only an aberration from true equity jurisprudence but was also an attempt by this Court to make new law, which we are constitutionally forbidden from doing. Art. I, § 43, Ala. Const. 1901 (“[T]he judicial [department] shall never exercise the legislative and executive powers, or either of them; to the end that [the government of this state] may be a government of laws and not of men.”). Moreover, Handley ⅛ misunderstanding of equity has the potential to “destroy all law, and leave the decision of every question entirely in the breast of the judge,” which would “make every judge a legislator, and introduce most infinite confusion; as there would then be almost as many different rules of action laid down in' our courts, as there are differences of capacity and sentiment in the human mind.” 1 Blackstone, at *62. My hope is that the Court will be more open to overruling Handley upon a direct challenge in the future. However, because I believe that “[o]ur duty is to enunciate the law on the record facts” even though “none of the parties declaimed the applicable law,” Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d at 960, and because I believe that enunciating the law on the factual record of this case would require overruling Handley, I respectfully dissent.

      . The Court also invited an amicus curiae brief from the Alabama Chapter of the American Academy of Matrimonial Lawyers, which declined because the attorneys on both sides of this case were members of that chapter.

      . It is true that this Court ordinarily is “disinclined to overrule controlling precedent when it is not invited to do so.” Moore v. Prudential Residential Servs., 849 So.2d 914, 926 (Ala.2002) (emphasis added), but that does not mean that it is improper to do so. On the contrary,
      "[a]ppellate review does not consist of supine submission to erroneous legal concepts even though none of the parties declaimed the applicable law below. Our duty is to enunciate the law on the record facts. Neither the parties nor the trial judge, by agreement or passivity, can force us to abdicate our appellate responsibility.” ’ "

        Hodurski, 899 So.2d at 960 (quoting Forshey, 284 F.3d at 1357 n. 20, quoting in turn Empire Life Ins. Co., 468 F.2d at 334 (emphasis added)). See also Travelers Indem. Co. of Connecticut v. Miller, 86 So.3d 338, 347 (Ala.2011) (overruling a case while expressly noting that the Court had not been asked to do so); Ex parte J.E. Estes Wood Co., 42 So.3d 104, 112 (Ala.2010) (Lyons, J., concurring specially) (noting that this Court had overruled a case without being asked); and Ex parte Carter, 889 So.2d 528, 533 (Ala.2004) (overruling cases the petitioner attempted to distinguish but did not ask the Court to overrule, along with several other cases). In this case, because Handley forms the jurisprudential basis for the erroneous decision below, I believe this Court is free to overrule Handley even without the request of the parties in this case to do so.

      . The paternal grandparents filed their petition for certiorari review first, and we granted their petition. The. maternal grandparents later petitioned for certiorari review. We granted that petition and consolidated their petition with the paternal grandparents’ petition.

      . This Court has used the phrases "recognized grounds of equity” and "special equity” interchangeably with “recognized equity principles.” See, e.g., City of Birmingham v. Horn, 810 So.2d 667, 679-80 (Ala.2001) (using the phrase “special equity”); Ex parte Martin, 775 So.2d 202, 206 (Ala.2000) (using the phrase "recognized grounds of equity”).

      . "The law does not define exactly, but trusts in the judgment of a good man.” Black’s Law Dictionary 1844 (9th ed. 2009).

      . United States Supreme Court Associate Justice Clarence Thomas has cited this passage in making a similar point:
      "Throughout his discussion, Blackstone emphasized that courts of equity must be governed by rules and precedents no less than the courts of law. '[I]f a court of equity were still at sea, and floated upon the occasional opinion which the judge who happened to preside might entertain of conscience in every particular case, the inconvenience that would arise from this uncertainty, would be a worse evil than any hardship that could follow from rules too strict and inflexible.’ [3 William Blackstone, Commentaries ], at 440. If their remedial discretion had not been cabined, Blackstone warned, equity courts would have undermined the rule of law and produced arbitrary government. 'The judiciary’s powers would have become too arbitrary to have been endured in a country like this, which boasts of being governed in all respects by law and not by will.’ Ibid. (footnote omitted); see also 1 id., at 61-62.”

        Missouri v. Jenkins, 515 U.S. 70, 127-28, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995) (Thomas, J., concurring).

      . The modem English rule that the loser pays the winner's fees did not develop until after America gained independence. See id.

      . It has also been said that the purpose of the American rule "is to avoid stifling legitimate litigation by the threat of the specter of burdensome expenses being imposed on an unsuccessful party.” 20 Am.Jur.2d Costs § 55 (2005). See also Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967) (arguing "in support of the American Rule” that one should not be discouraged from prosecuting or defending against a suit because of the uncertainty of litigation, that the poor might be unjustly discouraged from defending their rights for fear of paying their opponents’ fees, and that determining “reasonable attorney’s fees” in every case would unduly burden judicial administration). Although these arguments present the positive benefits conferred by the American rule, these arguments do not explain why the rule exists.

      .One of the cases cited in Smith was Ex parte Smith, 34 Ala. 455 (1859). However, Ex parte Smith held that courts of equity historically had authority to grant attorney fees from one spouse to another independent of the previous versions of §§ 30-2-50 through -52, Ala.Code 1975. 34 Ala. at 458-59. The basis of this historical equitable rule was the marital rela

        tionship. Id. See also Peacock v. Peacock, 264 Ala. 332, 334, 87 So.2d 626, 628 (1956) (citing Ex parte Smith).

      . I express no opinión as to whether a parent has a moral right to have an intervening third party pay that parent's attorney fees.


source: Caselaw Access Project

author: STUART, Justice.

license: Public Domain

text:
    CAVALIER MANUFACTURING, INC. v. Janie GANT.
    1080284.
    Supreme Court of Alabama.
    Dec. 20, 2013.

      John R. Bradwell and Royal C. Dumas of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellant.
    J. Charles McCorquodale IV and Joseph C. McCorquodale III of McCorquodale & McCorquodale, Jackson, for appellee.
   STUART, Justice.

Cavalier Manufacturing, Inc. (“Cavalier”), appeals the order of the Wilcox Circuit Court denying Cavalier’s motion to alter, amend, or vacate an arbitration award entered in favor of Janie Gant. We affirm.

I.

On March 25, 2003, Gant purchased a mobile home manufactured by Cavalier (“the mobile home”) from Demopolis Home Center, L.L.C. (“DHC”), for $47,379. At the time of purchase, Gant and representatives of Cavalier and DHC executed an alternative-dispute-resolution agreement in which they agreed to arbitrate any disputes that might arise among them stemming from Gant’s purchase of the mobile home. The mobile home was also covered by a manufacturer’s warranty issued by Cavalier that likewise contained a provision requiring Gant to submit to arbitration any disputes that might arise between her and Cavalier relating to the mobile home. That warranty also generally provided, subject to certain exclusions, that Cavalier would repair or replace any defect in material or workmanship that became evident within a 1-year period after purchase, so long as Cavalier was provided with written notice of the defect within 15 days of the expiration of the warranty period.

Gant was not satisfied with the manner in which DHC delivered and installed the mobile home on her property. After she moved into the mobile home, she began noticing various problems with it. It is undisputed that Gant notified DHC of those problems and that DHC made multiple efforts to satisfy Gant; it is disputed whether Gant ever notified Cavalier of her problems with the mobile home. It appears that contractors hired by DHC were able to remedy to Gant’s satisfaction some of the problems; however, on January 26, 2007, Gant sued Cavalier and DHC, asserting various fraud and breach-of-warranty claims stemming from her purchase of the allegedly defective mobile home.

On March 2, 2007, Cavalier moved the trial court to dismiss Gant’s complaint or, in the alternative, to compel arbitration pursuant to the Federal Arbitration Act (“the FAA”), 9 U.S.C. § 1 et seq., based on the alternative-dispute-resolution agreement Gant had executed with Cavalier and DHC. On April 25, 2007, the trial court granted Cavalier’s motion, stayed the case, and ordered “the parties” to submit their dispute to arbitration. Gant thereafter initiated an arbitration claim with the American Arbitration Association, and the parties prepared their cases for arbitration. On July 17 and 18, 2008, an arbitration hearing was held in Camden; part of the proceedings included a tour of the mobile home, which, for all that appears, Gant continued to live in. On October 17, 2008, the arbitrator issued an interim award in favor of Gant, awarding her $45,550 on her breach-of-express-warranty claim, plus an additional sum to be determined for attorney fees based on Cavalier’s and DHC’s violation of the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 15 U.S.C. § 2301 et seq. (“the Magnuson-Moss Act”). See Forest River, Inc. v. Posten, 847 So.2d 957, 961 (Ala.Civ.App.2002) (“[Section] 2310(d)(2) of the Magnuson-Moss Act authorizes the award of an attorney fee to prevailing plaintiffs in warranty actions at the discretion of the trial judge.”). In the award, the arbitrator made the following findings of fact:

“The evidence, specifically including but not limited to the arbitrator’s view of [Gant’s] home, makes very clear that the mobile home was not set up and/or finished properly. For example, there are substantial gaps between a number of the doors and the home itself. In addition, more than a preponderance of the evidence shows that substantial amounts of water came into the home via the ridge cap.
“The evidence is overwhelming that the home has sustained substantial damage caused by the presence of water and/or water vapor inside the exterior walls of the home. The arbitrator’s view of damage, specifically including but not limited to seeing rotted wood adjacent to the rear doors of the home, was consistent with the testimony and report of Michael Gurtler, one of [Gant’s] experts. Indeed, at one point at the right side of the left rear door (viewed from the inside) the arbitrator was convinced that if he pushed harder with his finger, he would put a hole through the floor. The arbitrator decided not to test his suspicion in the interest of not making a bad situation worse.
“The suggestion offered that the water damage near the rear doors was caused by water getting beneath the exterior roofing near the ridge cap and moving down between the interior and exterior roofs is inconsistent with the evidence. Although there is some staining above the outside of the left rear door (viewed now from the outside) consistent with water having flowed from the space between the roofs, there is no such staining above the other rear door noted above, where the rotting appears to be significantly greater.
“The ridge cap is curled and deformed along much if not all of its length. The suggestion offered by one or another of the witnesses that the deformation was caused by violent storms that passed through the area is not persuasive. If that were the cause, one would expect other areas of the roof to have been affected as well as the ridge cap, but the roof other than the ridge cap appears largely undamaged. In short, physical facts support Gurtler’s determination that the attic is not sufficiently well ventilated and that situation contributed to the presence of water vapor in the home.”

The arbitrator also explained the award in favor of Gant on her breach-of-express-warranty claim as follows:

“[Gant’s] claims include breach of express warranty against Cavalier and [DHC]. It is undisputed that Cavalier issues a warranty covering every home it sells.... Cavalier contends that it is entitled to judgment on [Gant’s] claims under the express warranty because she did not provide Cavalier with the notice required under the warranty and/or Alabama law prior to filing her complaint and did not provide it with an opportunity to cure the alleged defects prior to suit being filed. With the exception of a letter dated May 15, 2003, and an inspection list with comments dated May ■17, 2003, both of which [Gant] signed, it is undisputed that [Gant] did not communicate with any representative of Cavalier. ...
“The evidence, specifically including the testimonies of [Cavalier’s service manager Jerry] Dudley and Shawn Wilson, former manager of [DHC], persuades the arbitrator that there existed a course of dealing whereby [DHC] received complaints of problems from customers to whom it had sold homes built by Cavalier and that when those problems related to warranty issues passed them on to Cavalier who then took action. The evidence persuades the arbitrator that Cavalier took action on warranty items related to [Gant’s] home based on that course of dealing without seeking written or oral confirmation from her. The arbitrator finds that Cavalier waived the requirement for written notice set out in its manufacturer’s limited warranty. Because Cavalier waived its right to notice of warranty claims from [Gant], the arbitrator must deny Cavalier’s opportunity to cure argument. The evidence is clear that [Gant] complained to [DHC] of items covered by the manufacturer’s limited warranty and that several of those items were not corrected.
“Cavalier’s argument that [Gant] did not provide notice of alleged defects identified by her experts prior to filing this action is not persuasive. [Gant] provided those reports shortly after the investigations. Moreover, many of the defects noted were not knowable until completion of those inspections.”

(Footnotes omitted.) Following the entry of the arbitrator’s interim award, Gant submitted evidence to the arbitrator supporting her claim for attorney fees and Cavalier filed its objections to that claim.

On December 1, 2008, DHC, out of an abundance of caution, filed a premature notice of appeal to this Court seeking review of the arbitrator’s award; that appeal was subsequently dismissed by this Court on DHC’s motion after DHC indicated that it had reached a settlement with Gant (case no. 1080283). On December 30, 2008, Cavalier moved the trial court to alter, amend, or vacate the arbitration award. Gant opposed the motion, and, on March 6, 2009, the trial court denied Cavalier’s motion.

On March 17, 2009, the arbitrator entered his final award, confirming the $45,550 award previously made to Gant and also awarding an additional $72,732 in attorney fees and expenses. On April 16, 2009, Cavalier filed the arbitrator’s final award with the trial court and filed a new notice of appeal. On May 14, 2009, Cavalier moved the trial court to alter, amend, or vacate the arbitrator’s final award; Gant thereafter filed a brief opposing Cavalier’s motion. On August 4, 2009, the trial court denied Cavalier’s motion, and the case then proceeded on appeal in accordance with Cavalier’s April 16, 2009, notice of appeal. See New Addition Club, Inc. v. Vaughn, 903 So.2d 68, 71 (Ala.2004) (“Rule 4(a)(5), Ala. R.App. P., provides that a notice of appeal filed before the disposition of all postjudgment motions shall be held in abeyance until any remaining post-judgment motions are disposed of.”).

II.

Cavalier argues that the trial court erred by confirming the arbitration award in favor of Gant and that, pursuant to the FAA, the trial court’s judgment confirming the 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).

III.

Cavalier summarizes its argument to this Court as follows in its brief:

“In summary, the arbitrator exceeded his authority and/or was guilty of misconduct and/or misbehavior under 9 U.S.C. § 10, and/or acted in manifest disregard of the law for each of the following reasons. Each ground supplies an independent basis to vacate the award of the arbitrator.
“A. The arbitrator imposed liability upon Cavalier in the absence of the proper notice required under the warranty, under Alabama law, and under federal law. The arbitrator acknowledged that he was not even suggesting Cavalier received proper notice of Ms. Gant’s warranty claims.
“B. The arbitrator held Cavalier liable for defects not reported to Cavalier within the one-year warranty term. “C. The arbitrator imposed liability when Cavalier had not been provided a reasonable opportunity to cure.
“D. The arbitrator ignored Alabama law in finding that a ‘course of dealing existed between Ms. Gant and Cavalier that excused Ms. Gant from the requirements of notice and an opportunity to cure within the warranty term.
“E. The arbitrator ignored Alabama law in finding that there was a ‘course of performance’ that altered the terms of the warranty.
“F. The arbitrator ignored Alabama law in finding that Cavalier had waived the requirements in the warranty when there was no evidence that Cavalier ever intentionally relinquished its right to written notice from Ms. Gant.
“G. The arbitrator ignored Alabama law and held a savings clause, which was not applicable to the case, was required to be signed by Ms. Gant for Cavalier to enforce the warranty.
“H. The arbitrator ignored well-established federal preemption law and imposed liability upon Cavalier for conduct that was expressly permitted under federal law.
“I. The arbitrator entered an award of damages when there was a complete lack of any evidence of the alleged cost to repair or replace the alleged defective attic and plumbing ventilation.
“J. The arbitrator ignored Alabama law and entered an award of attorneys’ fees and costs to [Gant].”

Cavalier’s brief, pp. 32-33 (emphasis in original; citations to record omitted).

As an initial matter, we note that when Cavalier discusses each of these individual grounds in further detail in its brief, it frames each argument in terms of whether the award returned by the arbitrator demonstrates a manifest disregard of the law. That is, with regard to each of the 10 grounds Cavalier has identified, Cavalier seeks to establish that the relevant legal principles were well defined and were called to the arbitrator’s attention; yet, Cavalier argues, the arbitrator nevertheless chose to ignore those identified principles. This approach is essentially consistent with those cases in which this Court has discussed manifest disregard of the law as a basis for vacating an arbitration award. See, e.g., Jenks v. Harris, 990 So.2d 878, 885 (Ala.2008) (“Furthermore, ‘a party seeking to vacate an arbitration award on the basis of manifest disregard of the law must establish that “(1) the arbitrators knew of a governing legal principle yet refused to apply it or ignored it altogether, and (2) the law ignored by the arbitrators was well defined, explicit, and clearly applicable to the case.” ’ ” (quoting Birmingham, News Co. v. Horn, 901 So.2d 27, 50 (Ala.2004), quoting in turn Halligan v. Piper Jaffray, Inc., 148 F.3d 197, 202 (2d Cir.1998) (footnote omitted))).

Of course, in Hereford, this Court held that manifest disregard of the law was no longer a valid basis for vacating an arbitration award under the FAA, stating:

“Under the Supreme Court’s decision in Hall Street AssociatesL L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008) ], ... manifest disregard of the law is no longer an independent and proper basis under the Federal Arbitration Act for vacating, modifying, or correcting an arbitrator’s award. In light of the fact that the Federal Arbitration Act is federal law, and in light of the Supremacy Clause of the Constitution of the United States, Art. VI, we hereby overrule our earlier statement in Birmingham News that manifest disregard of the law is a ground for vacating, modifying, or correcting an arbitrator’s award under the Federal Arbitration Act, and we also overrule any such language in our other cases construing federal arbitration law.”

13 So.3d at 380-81. However, in a footnote we recognized that the Supreme Court in Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008), had not fully excised the concept of manifest disregard of the law from the body of arbitration law:

“The Supreme Court noted that the [first] use of the phrase ‘manifest disregard’ in Wilko [v. Swan, 346 U.S. 427, 436-37 (1953),] was particularly vague and that it could have had several possible meanings. The Court surmised that the use of the phrase ‘manifest disregard,’ instead of intending to create ‘a new ground for review,’ may merely have ‘referred to the § 10 grounds collectively, rather than adding to them.... Or, as some courts have thought, “manifest disregard” may have been shorthand for § 10(a)(3) or § 10(a)(4), authorizing vacatur when the arbitrators were “guilty of misconduct” or “exceeded their powers.” ’ Hall Street Associates, 552 U.S. at 585, 128 S.Ct. at 1404. Relying on these latter two possible meanings, some courts have held that ‘manifest disregard’ survives as a judicial gloss on the specific grounds for vacatur listed in § 10 of the Federal Arbitration Act. See Stolt-Nielsen SA v. AnimalFeeds Int’l Corp., 548 F.3d 85, 94 (2d Cir.2008) (citing with approval decisions of other courts that have held that ‘manifest disregard’ survives as a gloss on the § 10(a) grounds of the Federal Arbitration Act). We do not address whether manifest disregard of the law remains as a judicial gloss on the grounds specified in § 10(a) of the Federal Arbitration Act or is merely ‘shorthand for § 10(a)(3) or § 10(a)(4).’ We simply note that by the express language of the Supreme Court of the United States the text of the Federal Arbitration Act ‘compels a reading of the § 10 and § 11 categories [of relief] as exclusive.’ 552 U.S. at 586, 128 S.Ct. at 1404.”

13 So.3d at 380 n. 1.

Post -Hereford, this Court has consistently indicated that courts must enforce awards entered in arbitration proceedings conducted pursuant to the FAA unless the challenging party establishes that vacatur is appropriate based on one of the following grounds enumerated in § 10(a) of the FAA:

“1) where the award was procured by corruption, fraud, or undue means;
“2) where there was evident partiality or corruption in the arbitrators, or either of them;
“8) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
“4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.”

See, e.g., Raymond James Fin. Sens., Inc. v. Honea, 55 So.3d 1161, 1166 (Ala.2010), and Smallwood v. Holiday Dev., LLC, 38 So.3d 718, 720 (Ala.2009). Cavalier now asks this Court to adopt the viewpoint of courts such as the United States Court of Appeals for the Second Circuit in Stolk-Nielsen SA v. AnimalFeeds International Corp., 548 F.3d 85, 94 (2d Cir.2008), cited in Hereford, and to use the two-part manifest-disregard-of-the-law test used in cases such as Jenks and Birmingham News as a mechanism to determine whether vacatur is appropriate based on a § 10(a) ground. Thus, Cavalier argues, if there is evidence indicating that the arbitrator exhibited a manifest disregard of the law, the resulting award is necessarily the product of corruption, fraud, undue means, partiality, misconduct, misbehavior, and/or the arbitrator’s exceeding his or her powers, and the award must accordingly be vacated.

We decline Cavalier’s invitation to give further life to the concept of manifest disregard of the law. The Supreme Court of the United States has made it clear, and this Court has recognized, that under the FAA the § 10 grounds are the exclusive avenue for seeking vacatur of an arbitration award. As the United States Court of Appeals for the Fifth Circuit stated in Citigroup Global Markets, Inc. v. Bacon, 562 F.3d 349, 358 (5th Cir.2009), the effect of Hall Street Associates is essentially that the phrase “manifest disregard of the law,” “as a term of legal art, is no longer useful in actions to vacate arbitration awards.” We agree; the § 10 grounds are sufficiently clear that it is unnecessary to view them through a “manifest disregard” lens. Thus, a party arguing to this Court that a trial court erred in denying a motion to vacate or modify an arbitration award must frame its arguments by specific reference to the § 10 grounds. See also Horton Homes, Inc. v. Shaner, 999 So.2d 462, 467 n. 2 (Ala.2008) (“[A] party desiring judicial review of an arbitration award in a proceeding subject to the [FAA] is limited to arguments based on those grounds enumerated in 9 U.S.C. § 10.”).

In this case, Cavalier failed to make such specific reference or argument, citing no caselaw in which this Court has discussed arbitrator misconduct, misbehavior, or what it means for an arbitrator to exceed his or her powers. Rather, Cavalier has essentially done exactly what the appellant in Hereford did — made solely a manifest-disregard-of-the-law argument— the one difference being that Cavalier prefaced the substance of its argument by arguing that “ ‘manifest disregard of the law is simply a shorthand expression for ‘misconduct,’ ‘misbehavior,’ and/or ‘exceeded their powers.’ ” Cavalier’s brief, p. 19. The appellant in Hereford was unsuccessful. See Hereford, 13 So.3d at 381 (“Hereford has raised manifest disregard of the law as the only ground on which she seeks to have the arbitrator’s award vacated. Because manifest disregard of the law, by itself, is not a valid ground for relief from the arbitrator’s award and because Hereford has not argued that this Court should vacate the decision of the arbitrator on any of the grounds specified in § 10(a) of the Federal Arbitration Act, she has not demonstrated that she is entitled to relief from the trial court’s decision confirming the arbitrator’s decision.”). Cavalier is likewise unsuccessful because its general assertion that the arbitrator exceeded his authority or was guilty of misconduct or misbehavior is not supported by citations to authority; rather, all of Cavalier’s citations to authority are dedicated to demonstrating that the arbitrator failed to correctly apply the law and, in fact, exhibited a manifest disregard of the law. “ ‘Where an appellant fails to cite any authority for an argument, this Court may affirm the judgment on those issues, for it is neither the Court’s duty nor its function to perform all the legal research for an appellant.’ ” Welch v. Hill, 608 So.2d 727, 728 (Ala.1992) (quoting Sea Calm Shipping Co., S.A v. Cooks, 565 So.2d 212, 216 (Ala.1990) (citations omitted)).

We further note, however, that there is no misconduct, misbehavior, or exceeding of powers by the arbitrator simply because an arbitrator might have decided an issue incorrectly. With regard to misconduct and misbehavior, § 10(a)(3) of the FAA provides for vacatur of an arbitration award

“where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced....”

This context indicates that the misconduct and misbehavior that merits a vacatur must relate to whether a party was afforded a fundamentally fair hearing. See, e.g., Robbins v. Day, 954 F.2d 679, 685 (11th Cir.1992) (“A federal court may vacate an arbitrator’s award under 9 U.S.C. § 10(a)(3) only if the arbitrator’s refusal to hear pertinent and material evidence prejudices the rights of the parties and denies them a fair hearing.”). There is no evidence indicating or even an allegation in the instant case that Cavalier was not afforded a full and fair arbitration hearing at which to present its evidence and make its argument; § 10(a)(3) accordingly provides no basis for vacating the arbitrator’s award in favor of Gant.

Moreover, in Birmingham, News, this Court explained § 10(a)(4) and the exceeded-powers ground for vacatur of an arbitration award, stating:

“In general, the nature of the ‘exceeded powers’ ground is described as follows:
“ ‘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)(1) 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.’
“DiRussa v. Dean Witter Reynolds Inc., 121 F.3d 818, 824 (2nd Cir.1997) (internal quotation marks and citations omitted).”

901 So.2d at 47 (emphasis added). The arbitration agreements in this case were broadly written and, without dispute, encompass the issues presented in this case. We will not conclude that an arbitrator exceeded his or her authority simply because he or she may have decided an issue incorrectly; accordingly, § 10(a)(4) provides no relief to Cavalier in this case.

IV.

When Gant purchased the Cavalier mobile home from DHC, the parties — Gant, Cavalier, and DHC — executed an agreement agreeing to arbitrate any disputes that arose related to the transaction. A dispute did arise and, pursuant to that agreement, the dispute was submitted to arbitration, at the conclusion of which an award was entered in favor of Gant. Cavalier subsequently sought judicial review of that award, the gravamen of its argument being that the arbitrator’s conclusions were contrary to the applicable law. However, on motions to vacate an arbitration award, it is not the function of courts to agree or disagree with the legal reasoning of the arbitrator — courts are to determine only whether the party challenging the award has clearly established that vacatur is justified by one of the grounds specified in § 10 of the FAA. Hereford, 13 So.3d at 378. Cavalier has not done so. Accordingly, the judgment of the trial court is hereby affirmed.

AFFIRMED.

BOLIN, PARKER, MURDOCK, SHAW, MAIN, AVISE, and BRYAN, JJ„ concur.

MOORE, C.J., concurs in the result.

      . This case was mistakenly placed on this Court's administrative docket in September 2011 and was not assigned to Justice Stuart until October 22, 2013. We regret the delay in the issuance of a decision in this appeal.

      . At that time, Rule 71B, Ala. R. Civ. P., which now governs the time limits and procedure for appealing an arbitration award, had not yet been adopted, and there was some confusion regarding the procedure for seeking judicial review of an arbitration award. See, e.g., Horton Homes, Inc. v. Shaner, 999 So.2d 462, 464 (Ala.2008), in which this Court recognized that " 'the procedure for obtaining jurisdiction to review an arbitration award under § 6-6-15, Ala.Code 1975, is far from clear.' " (Quoting Jehlcs v. Harris, 990 So.2d 878, 882 (Ala.2008).)

      . DHC went out of business in October 2003 but remained active in the litigation until it reached a settlement with Gant after the arbitrator’s award was entered. It is not a party to this appeal.

      . In an Alabama case, the United States Court of Appeals for the Eleventh Circuit aligned itself with the Fifth Circuit’s decision in Citigroup Global Markets. See Frazier v. CitiFinancial Corp., LLC, 604 F.3d 1313, 1324 (11th Cir.2010) ("We hold that our judicially-created bases for vacatur are no longer valid in light of Hall Street. In so holding, we agree with the Fifth Circuit that the categorical language of Hall Street compels such a conclusion.”). However, we recognize that some other federal circuit courts have continued to employ a manifest-disregard-of-the-law analysis, considering it to be a shorthand way of encompassing some of or all the § 10 grounds. See, e.g., Stolt-Nielsen (second circuit), Coffee Beanery, Ltd. v. WW, L.L.C., 300 Fed.App'x 415 (6th Cir.2008) (not selected for publication in the Federal Reporter), and Comedy Club, Inc. v. Improv West Assocs., 553 F.3d 1277 (9th Cir.2009).

      . Cavalier has also argued that the arbitration award returned in favor of Gant should be vacated because, Cavalier argues, the award is irrational, is contrary to public policy, is arbitrary and capricious, and lacks any factual support. These arguments clearly have no relation to § 10, and we accordingly grant them no consideration. See Frazier, 604 F.3d at 1322-24 (holding that appellant’s "additional arguments that the [arbitration] award was arbitrary and capricious [and] in violation of public policy” are no longer valid in light of Hall Street Associates).

      . It is ultimately unnecessary for us to consider whether the legal conclusions made by the arbitrator in this case were correct, and we express no opinion on that point.


author:
BOLIN, Justice.
     MURDOCK, Justice

text:
    LAKE CYRUS DEVELOPMENT COMPANY, INC. v. ATTORNEY GENERAL OF THE STATE OF ALABAMA EX REL. BESSEMER WATER SERVICE.
    1090948.
    Supreme Court of Aabama.
    Jan. 10, 2014.

      V. Edward Freeman II of Stone, Patton, Kierce & Freeman, Bessemer, for appellant.
    Troy King and Luther Strange, attys. gen., and J. Matt Bledsoe and Olivia W. Martin, asst, attys. gen., for appellee.
   BOLIN, Justice.

Lake Cyrus Development Company, Inc. (“LCDC”), appeals from the trial court’s denial of its motion to alter, amend, or vacate a judgment in favor of Bessemer Water Service (“BWS”) or, in the alternative, its motion for a new trial. We reverse and remand.

I. Facts and Procedural History

This case involves a dispute between BWS and LCDC over a contract referred to as the “1998 water agreement.” In Bessemer Water Service v. Lake Cyrus Development Co., 959 So.2d 643 (Ala.2006)(“Bessemer I”), this Court determined that the 1998 water agreement was entered into in violation of § 39-2-2, Ala.Code 1975, which mandates that all public-works contracts in excess of $50,000 be advertised for sealed bids. The relevant facts and much of the procedural history of this appeal are set forth in Bessemer I:

“The 1998 water agreement was entered into on April 30, 1998. The contract was signed by the then mayor of Bessemer, Quitman Mitchell, who by statute also served as the manager of Bessemer Utilities, and by Charles Giv-ianpour, the president of LCDC. It was the product of two months of negotiations that began when Mayor Mitchell and Charles Nivens, operations manager for Bessemer Utilities, approached Giv-ianpour and asked him to use BWS, instead of Birmingham Water Works, as the provider of water to the new Lake Cyrus residential development in Hoover. BWS was interested in providing water to Lake Cyrus not only to increase its customer base, but also to further its reach. Toward that end, BWS expressly negotiated for LCDC to increase the size of the main water line within the development (running from Highway 150 to Parkwood Road) from a 12-inch line to a 16-inch line to allow for future expansion.
“The 1998 water agreement obligated BWS
“ ‘to provide potable water to all residential, industrial and commercial areas within the [Lake Cyrus] development at the same rates and upon the same terms and conditions (as modified by the terms and provisions of this agreement) as BWS provides water service to all other residential, industrial and commercial customers, respectively, of BWS.’
“(Emphasis added.) The terms and provisions of the 1998 water agreement had been modified; they were not the terms and provisions of the typical BWS water-services contract. Nivens and Terry Hinton, water-distribution superintendent at BWS, testified that it was BWS’s standard procedure to fund the cost of a water-main extension for a residential development to the point of the entrance to the development and that the developer customarily paid all costs associated with bringing water from that point into the development, including the construction of the interior main extension, the submain, and the lateral lines. However, under the 1998 water agreement, BWS agreed to pay LCDC $273,000 as ‘a partial deferment’ of the costs LCDC incurred in installing the interior 16-inch main extension, the sub-mains, and the associated water valves. Moreover, BWS agreed to reimburse LCDC on a monthly basis for all costs and expenses LCDC incurred in installing the lateral water lines within the development.
“It was also standard BWS practice to charge a ‘tap fee’ to each new customer that requested water service. The tap fee was used to offset the cost of extending the water main to the entrance of a new development and the cost of maintaining the water lines in the development after the lines were installed and tendered by the developer for BWS’s acceptance. However, the 1998 water agreement required BWS to remit to LCDC, on a monthly basis, 100% of the tap fees collected in the development.
“Aside from the provisions mandating a $273,000 payment to LCDC, the reimbursement of LCDC’s lateral-line construction costs, and the transmittal to LCDC of 100% of the collected tap fees, BWS also identified the following requirements in the 1998 water agreement as deviating from the terms and conditions of its standard water-services contract: 1) BWS was to provide and install all fire hydrants; 2) LCDC was to retain an option to repurchase all of the waterworks in the development after they were tendered to BWS; 3) BWS was required to keep the contents of the 1998 water agreement confidential; and 4) all late payments by BWS accrued interest at the rate of 18%.
“In 2002, Edward May was elected mayor of Bessemer. May replaced Mayor Mitchell and began his term on October 7, 2002. Mayor May initially continued to sign the reimbursement checks being sent to LCDC under the 1998 water agreement. However, in approximately May 2004, after reviewing a copy of the contract, Mayor May began to doubt the legality of the 1998 water agreement. After consulting with the City’s attorney, Mayor May sent LCDC a letter, dated August 9, 2004, informing it of the City’s position that the 1998 water agreement" was void and requesting that legal counsel for the City and for LCDC meet and discuss the options.
“The relationship between LCDC and BWS rapidly disintegrated. Because BWS would not pay LCDC $202,990 in reimbursements LCDC was claiming under the 1998 water agreement for finishing the interior 16-inch water-main extension through the back of the subdivision to complete the connection with the main BWS line at Parkwood Road, LCDC refused to complete the work. BWS was anxious to have the extension completed because the connection at Parkwood Road would ‘loop’ the system. In response, BWS delayed approving water lines connecting the remaining sector of the Lake Cyrus development, causing delays in residential construction.
“On December 6, 2004, BWS filed its cross-claim seeking, among other relief, relief from the allegedly invalid provisions in the 1998 water agreement that required it: 1) to remit to LCDC $71,540, the outstanding balance of the $273,000 partial-deferment payment; 2) to further reimburse LCDC for costs and expenses associated with constructing lateral lines; 3) to turn over to LCDC 100% of the tap fees that were collected in the development; 4) to sell LCDC all the water lines in the development if LCDC elected to exercise the purchase option; and 5) to keep the terms of the 1998 water agreement confidential. BWS also asked the trial court to enforce the valid portions of the 1998 water agreement so as to allow BWS to continue to provide water to the Lake Cyrus development. Finally, BWS asked the trial court to determine if it could recover any of the funds previously paid to LCDC under the 1998 water agreement and to declare that BWS was the owner of all of the waterworks within the Lake Cyrus development that had previously been tendered by LCDC and accepted by BWS.
“LCDC thereafter filed a ‘motion for emergency expedited and injunctive relief,’ asking the trial court to order BWS to supply water to the final sector of the Lake Cyrus development as promised and to pay LCDC the money LCDC was claiming under the 1998 water agreement. LCDC further asked the court to enjoin BWS from future breaches of the contract.
“The trial court held a bench trial on all pending matters in the case from February 28, 2005, through March 3, 2005. On March 7, 2005, the trial court entered an order finding the entire 1998 water agreement to be valid and entering a judgment in favor of LCDC. On March 8, 2005, the trial court entered an amended order, ordering BWS to pay LCDC $224,979.83 in damages. BWS appeals.”

959 So.2d at 646-48 (emphasis in original; footnotes omitted).

In jBessemer I, this Court concluded that the trial court had exceeded its discretion in holding that the 1998 water agreement was a valid binding contract and in awarding LCDC $224,979.83 because, we held, the agreement was entered into violation of § 39-2-2 and was therefore void:

“Because the 1998 water agreement involved a public-works project (in an amount in excess of $50,000), BWS was required by § 39-2-2 to advertise for sealed bids before entering into the contract calling for it to expend public funds on the project. BWS did not do so. By way of the 1998 water agreement, BWS and LCDC effectively bypassed the bidding process entirely so as to award the contract directly to LCDC. This violated § 39-2-2 and, pursuant to § 39-2-2(c), the 1998 water agreement is accordingly ‘null, void, and violative of public policy.’ The trial court therefore erred in holding that it was a valid binding contract. Moreover, because § 39-5-6 and § 39-5-l(a)[, Ala.Code 1975,] forbid a party from receiving any payment in connection with a contract awarded in violation of the competitive bid law, regardless of the party’s culpability, the trial court also erred in awarding LCDC $224,979.83 for BWS’s alleged breach of contract. Because the 1998 water agreement was entered into in violation of the mandatory provisions of § 39-2-2, LCDC is not entitled to recover any payment for the work it performed under that contract.”

959 So.2d at 651. In addition to holding that LCDC was not entitled to recover any payments for the work it had performed under the 1998 water agreement, we also held (1) that any invalid provisions of the 1998 water agreement were not subject to severance; (2) that because LCDC did not hold a valid option to repurchase the waterlines previously tendered to BWS under the 1998 water agreement, those lines were the property of BWS and the lines that LCDC had not yet tendered to BWS remained the property of LCDC; and (8) that any action to recover payments made by BWS to LCDC under the 1998 water agreement could be brought only by the attorney general or any other interested person for the benefit of BWS, § 39-5-3, Ala.Code 1975. For the foregoing reasons, this Court reversed the judgment of the trial court and remanded the cause for proceedings consistent with this Court’s opinion.

II. Proceedings on Remand

On December 18, 2006, the trial court entered an order setting aside its March 8, 2005, judgment in favor of LCDC and awarding LCDC $224,979.83. On January 10, 2007, then Attorney General Troy King intervened, pursuant to § 39-5-3, on BWS’s behalf and filed a complaint against LCDC seeking to recover the payments BWS had made to LCDC under the 1998 water agreement. On August 27, 2007, Attorney General King, on behalf of BWS, filed (1) a motion for a partial judgment in the amount of $224,-979.83 and (2) a motion for a summary judgment, asserting that BWS was entitled to recover $1,093,727.96 — the amount BWS claimed it had paid LCDC under the 1998 water agreement. The trial court granted BWS’s motion for a partial judgment but denied its motion for a summary judgment. The trial court thereafter conducted a hearing for the purpose of determining (1) whether, pursuant to § 39-5-3, Attorney General King was entitled to recover on behalf of BWS the payments BWS had made under the 1998 water agreement and (2) which waterlines in the Lake Cyrus development had been tendered to BWS.

On November 13, 2009, the trial court entered a judgment in favor of Attorney General King for the benefit of BWS:

“(1) That judgment is rendered in favor of the Intervenor Troy King, as Attorney General of the State of Alabama for the benefit of [BWS] and against [LCDC], in the amount of $1,093,727.96.
“(2) That all water lines in question wherein [LCDC] or a customer has requested water services from [BWS] and the lines are interconnected with the public water system and are devoted to public services have been ‘tendered’ by [LCDC] to [BWS] and are the property of [BWS].”

LCDC thereafter filed a postjudgment motion requesting that the trial court alter, amend, or vacate its judgment or, in the alternative, that it order a new trial. The trial court denied the motion. LCDC appealed.

III. Standard of Review

“Our standard of review for rulings on postjudgment motions is well settled:

“ ‘In general, whether to grant or to deny a posttrial motion is within the sound discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal unless by its ruling the court abused some legal right and the record plainly shows that the trial court erred. See Green Tree Acceptance, Inc. v. Standridge, 565 So.2d 38 (Ala.1990).’ ”

Hitt v. State of Alabama Pers. Bd., 873 So.2d 1080,1085 (Ala.2003) (quoting Flagstar Enters., Inc. v. Foster, 779 So.2d 1220, 1221 (Ala.2000)).

IV. Discussion

1. Section 39-5-3, Ala.Code 1975

The first issue presented by LCDC is whether the trial court’s judgment in favor of Attorney General King, acting on behalf of BWS, was supported by clear and convincing evidence that Charles Givianp-our, the president of LCDC, knew before the 1998 water agreement was executed that the agreement was being entered into in violation of § 39-2-2.

Section 39-5-3 provides:

“An action shall be brought by the Attorney General or may be brought by any interested citizen, in the name and for the benefit of the awarding authority, to recover paid public funds from the contractor, its surety, or any person receiving funds under any public works contract let in violation of or contrary to this title or any other provision of law, if there is clear and convincing evidence that the contractor, its surety, or such person knew of the violation before execution of the contract. The action shall be commenced within three years of final settlement of the contract.”

(Emphasis added.)

As previously noted, Attorney General King intervened in this case on behalf of BWS to recover payments BWS had made to LCDC under the 1998 water agreement. It is undisputed (1) that Attorney General King was an appropriate party to bring an action on behalf of BWS under § 39-5-3, (2) that the 1998 water agreement constituted a contract for public works as determined in Bessemer I, and (3) that BWS had made payments to LCDC under the 1998 water agreement. The only issue left for our determination is whether the record demonstrates clear and convincing evidence that Givianpour knew before the 1998 water agreement was executed that the agreement was being entered into in violation of § 39-2-2. The evidence is this case was presented to the trial court ore tenus.

“ ‘[W]hen evidence is presented ore tenus in a nonjury case, a judgment based on that ore tenus evidence will be presumed correct and will not be disturbed on appeal unless it is plainly and palpably wrong or against the great weight of the evidence. Eagerton v. Second Econ. Dev. Coop. Dist. of Lowndes County, 909 So.2d 783, 788 (Ala.2004). Nevertheless, this rule is not applicable where the evidence is undisputed or where the material facts are established by undisputed evidence. Salter v. Hamiter, 887 So.2d 230, 233-34 (Ala.2004). Additionally, when the trial court “improperly applies the law to the facts, the presumption of correctness otherwise applicable to the trial court’s judgment has no effect.” Ex parte Bd. of Zoning Adjustment of Mobile, 636 So.2d 415, 418 (Ala.1994).’ ”

Bessemer I, 959 So.2d at 648 (quoting Hartford Cas. Ins. Co. v. Merchants & Farmers Bank, 928 So.2d 1006, 1009 (Ala.2005)).

As stated in Bessemer I, the 1998 water agreement was the product of two months of negotiations that began when Quitman Mitchell, then mayor of the City of Bessemer, and Charles Nivens, operations manager for Bessemer Utilities, approached Givianpour and asked him to use BWS instead of Birmingham Water Works as the provider of water services to the Lake Cyrus development. The 1998 water agreement was signed by both Mayor Mitchell on behalf of the City of Bessemer and Givianpour as president of LCDC; both parties were represented by attorneys.

The only witnesses who testified at the hearing were Givianpour; Nivens; Fred Hinton, a supervisor at BWS; and Terry Edwards, a supervisor at BWS. Givianpour testified that he had been in the “land construction development” and “construction” business for over 20 years and that, during that time, he had never been involved with a government contract. Giv-ianpour testified that Steven R. Monk of Bradley & Arant, LLC, had represented him in negotiating the 1998 water agreement. Givianpour testified that Monk specifically told him that the City of Bessemer had represented and certified that it had the right to enter into the agreement, and he stated that, according to Monk, the contract was valid. It is BWS’s position that Monk told Givianpour that the 1998 water agreement violated the competitive-bid law, i.e., § 39-2-2, but that Givianpour chose to enter into the agreement in hopes that that would not present a problem. BWS relies heavily on the fact that Monk did not testify regarding the legality of the 1998 water agreement, that Givianpour had failed to bring a legal-malpractice action against Monk, and that Givianpour had continued to use Monk as an attorney for other matters even after Attorney General King had intervened in the case.

Givianpour testified as follows:

“Q. Let me ask you this: Do you recall finding out — do you recall when you found out that you had been — that [LCDC] had been sued?
“A. The only thing I know was that I heard that the mayor goes to the council and tell[s] the council that [the 1998 water agreement was going to] court [to] get [the] judge’s opinion on that contract, that whether that contract is good by — by the mayor’s signature or [should the 1998 water agreement have the] city council’s signature on it. That’s what I was told that this whole thing was about.
“A. And then it evolved from that.
“Q. But when it evolved, what did you do? Did you contact anybody?
“A. I talked to Steve Monk, and, you know, he is not a litigator, so I had to get someone that, you know, can [represent me in court]. He doesn’t go to court and litigate.
“A. I believe when originally this [came] up there was no question of bid laws. It was question of whether [the] council had to sign or not.
“A. I [had a] conversation with [Steve Monk], and over and over and over again he [told] me that this [1998 water agreement] is good even with [the Supreme Court] not calling it [in Bessemer I ]. He stated that [the Supreme Court] was misled; they made their own decision; and we’re still good....
“Q. And nobody has ever told you that you would have a malpractice suit?
“A. ... There is no possible way that [BWS] could have bid this project. And that’s the technicality that everybody is hanging their hat on.
“This project could have never been bid....
“But the only thing was that it was— they came to me as a favor to them. This was not a profit center. No one made any money on it. No one was going to make any money on it.
“The only thing here was, they ask me to upgrade this pipe that I was putting in the ground from 12-inch to 16-inch. And they said that we calculated our cost from U.S. Pipe.... They paid no labor. I even subsidized the taxes.
“So how could they bid anything to anyone out there that whoever is doing it is going to lose money on it? There was no profit here.... It was a favor that I did for Bessemer ..., and here I’m getting burned because of it.
“Since then, we lost most of our net worth. I lost my retirement money on it. I lost some of my net worth that I worked thirty, forty years. My kids going to college? Now [there is a threat] that they [will] not be able to register next time. And all of that happened just because of a technicality.
“Q. And so you’re telling me that [Steve Monk] never once told you that this is in violation of the bid law; I’ll set up this contract for you, and we’ll just see how it goes?
“A. No. He still thinks that, you know, everything was done right and we got caught in some kind of technicality.
“But, no, I think that [Steve Monk] is a very honorable man, and I back him up a hundred percent.
“Q. Was the City of Bessemer represented by any attorney?
“A. Calvin Biggers.
“Q. Did you rely on this [1998 water agreement]?
“A. We borrowed money on it.
“Q. Before you entered into this agreement, did anyone ever tell you or did you have any knowledge that the contract should have been bid out?
“A. No. It could not have been bid out. It’s humanly not possible.”

There was no other evidence or testimony presented to dispute Givianpour’s testimony that he had no knowledge before the 1998 water agreement was executed that the agreement was being entered into in violation of § 39-2-2. Fred Hinton testified primarily regarding the repairs BWS had made in the Lake Cyrus development from 1998 through 2004 and the costs involved in making those repairs. Terry Edwards testified primarily regarding the amount of work BWS had performed in the Lake Cyrus development between 1998 and 2006. Charles Nivens testified about the specific payments alleged to be owed by LCDC under the 1998 water agreement, about the procedure BWS customarily used to inherit and/or receive ownership of waterlines, about the waterlines LCDC had tendered to BWS, and about the fact that BWS had worked on the waterlines within the Lake Cyrus development without procuring any easements. The testimony provided from Edwards, Hinton, and Nivens was unrelated to the issue whether Givianpour had knowledge before its execution that the 1998 water agreement violated § 39-2-2.

Section 39-5-3 requires a showing by “clear and convincing evidence” that Givianpour knew before its execution that the 1998 water agreement violated § 39-2-2. Clear and convincing evidence is defined as follows:

“Evidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.”

Ala.Code 1975, § 6-11-20(4) (emphasis added).

The record does not support a showing of any evidence, much less clear and convincing evidence, that Givianpour had knowledge before its execution that the 1998 water agreement was in violation of § 39-2-2. Accordingly, BWS is not entitled, pursuant to § 39-5-3, to recover any money it paid to LCDC under the agreement. When the trial court improperly applies the law to the facts, the presumption of correctness otherwise applicable to the trial court’s judgment is not applicable. Bessemer I, 959 So.2d at 648. Because the trial court improperly applied the law to the facts of this case, its judgment awarding BWS $1,093,727.96 in damages is due to be reversed.

2. Ownership of the Waterlines

In Bessemer I, this Court addressed the ownership of the waterlines as follows:

“The last remaining issue relates to ownership of the waterlines that are currently in place in the Lake Cyrus development. The 1998 water agreement contained a purchase option purporting to allow LCDC to repurchase all the waterlines previously tendered to BWS [in the event of a default by BWS] if it elected to do so. BWS has asked this Court to declare BWS the owner of those waterlines. Because we have held that the 1998 water agreement is void pursuant to § 39-2-2(c), LCDC does not hold a valid option to repurchase the waterlines previously tendered to BWS pursuant to the 1998 water agreement; those lines are thus the property of BWS. However, all lines that LCDC has not yet tendered to BWS remain the property of LCDC. LCDC may hereafter elect to tender those lines to BWS; however, because we have held that the 1998 water agreement is void, LCDC is under no legal obligation to do so.”

959 So.2d at 652 (emphasis added).

Bessemer I addressed ownership of the waterlines that were “currently” in place at the Lake Cyrus development. Bessemer I specifically held that because LCDC did not hold a valid option to repurchase the waterlines “previously” tendered to BWS under the 1998 water agreement, those lines remained the property of BWS and all lines LCDC had not yet tendered to BWS remained the property of LCDC. On remand, the trial court held a hearing to determine, among other things, which waterlines had actually been tendered to BWS. In his opening statement to the trial court, BWS’s attorney stated:

“The Supreme Court stated that those lines that had already been tendered to Bessemer Water Services belong to Bessemer Water Services and that those lines that had not been tendered to Bessemer Water Services belong to the Lake Cyrus Development Company.
“There’s yet to be a determination as to what lines have been tendered.... ”

In Bessemer I, however, this Court did not address how a “tender” occurred in the absence of a valid written agreement. Therefore, before the trial court could properly make a determination regarding which waterlines had actually been tendered to BWS, it had to determine how a tender could be accomplished. Charles Nivens, operations manager for Bessemer Utilities, testified as follows:

“Q. And is there something that happens when someone develops a subdivision, as far as if they install the lines, what’s the procedure for Bessemer receiving those waterlines?
“A. They normally pressure-test [the lines] to our satisfaction and disinfect the lines to our satisfaction. And then we, as utilities, inherit the lines based, on a main-extension agreement.
“Q. Were the lines in Lake Cyrus Development, had they been pressure-tested, and any other kind of requirements that Bessemer requires, have all those requirements been met?
“A. Yes.
“... Other than sections 16A and 16B inside the Lake Cyrus Development Company [sic], have any lines ever been tendered as far as the main-extension lateral agreement? Has it ever been signed by [LCDC] and transferring those lines to [BWS]?
“A. Not that I’m aware of.
“Q. So it’s your testimony that those lines have never been transferred to [BWS]?
“A. The lines were disinfected, pressure-tested and signed off by our — by our lab. And because of past practice and customs and agreements that we’ve had over numerous years, that was when [BWS] took over responsibility for those lines and made the appropriate taps on those lines.
“Q. To the best of your knowledge, had [BWS] ever entered [into] an agreement with anyone like they did [LCDC]?
“A. No, that was the first.
“Q. Is that your common pattern and practice, is to have a development complete a document that states they’re transferring the lines to [BWS]?
“A. [Nivens:] Again, we have what we call a main-extension agreement. It’s where the contractor submits plans to us for their subdivision.
“It’s reviewed by [BWS] ....
“It’s approved and signed off on and then — and sent back to the individual.
“And in that document — the main-extension agreement states that those lines would become property of [BWS].
“Q. You were asked earlier if you — if the Lake Cyrus Development had any— I’m sorry, if [BWS] had easements over those waterlines in the Lake Cyrus Development Company [sic], and you said no. Why.did you say no?
“A. I’ve requested ... for years to get mapping of Lake Cyrus. And in order to get easements, you have to have the mapping so that easements can be recorded with the court system.
“Q. Are you aware that in the [1998 water agreement] there was a provision there for easements?
“A. Yes.
“Q. And is it your understanding that there was a question of whether or not there was an easement within the development after this Supreme Court opinion came out?
“A. It’s my understanding that the minute that we accepted the lines as being pressure-tested and disinfected and approved by our environmental group that the lines were ours based on the contract.”

(Emphasis added.)

To reiterate, Nivens testified regarding the procedure BWS customarily used to inherit waterlines from a developer. Specifically, Nivens testified that once waterlines are pressure-tested and disinfected to BWS’s satisfaction, BWS inherits the lines based on a main-extension agreement. Nivens also testified that, in this case, it was his understanding “that the minute that we accepted the lines as being pressure-tested and disinfected and approved by our environmental group that the lines were ours based on the contract.” The contract to which Nivens refers is the 1998 water agreement, which this Court in Bessemer I held was void. Nivens further acknowledged that he was unaware of any other waterlines, other than those lines in sections 16A and 16B of the Lake Cyrus development that had been tendered to BWS pursuant to a main-extension agreement. Givianpour also testified that in 2008 he signed a main-extension agreement with the City of Bessemer for sections 16A and 16B and that the agreement was presented to him by Aaron Killings, the attorney for BWS.

Despite the undisputed evidence adduced at the hearing concerning BWS’s customary pattern and practice of receiving tender of waterlines from a developer, the trial court held, without citation to authority or any basis therefor:

“(2) [t]hat all waterlines in question wherein the developer or a customer has requested water services from [BWS] and the lines are interconnected with the public water system and are devoted to public services have been ‘tendered’ by [LCDC] to [BWS] and are the property of [BWS].”

On appeal, LCDC argues, in part, that the trial court’s judgment is unsupported by the evidence. We agree. As previously stated, in order to determine which waterlines had been tendered, the trial court was tasked with determining how a “tender” of those lines is accomplished. The trial court’s judgment regarding how a tender is accomplished is both ambiguous and unsupported by the evidence. Specifically, the judgment is silent regarding the procedure BWS customarily uses to inherit waterlines from a developer; the judgment neither references a main-extension agreement nor excludes it. Moreover, the judgment, among other things, refers to waterlines being “devoted to public services.” There was no testimony presented during the hearing regarding the devotion of waterlines to “public services,” nor is there any record of such argument being made to the trial court. The trial court’s judgment neither defines the phrase “devoted to public services” nor cites any authority for the meaning of the phrase. There is simply nothing in the record to support the trial court’s finding that a tender is accomplished “once the developer or a customer has requested water services” and “the lines are interconnected with the public water system” and “are devoted to public services.” Moreover, the trial court’s judgment is silent regarding which waterlines had actually been tendered; the undisputed evidence was that only those waterlines in sections 16A and 16B had been tendered.

We hold, under the undisputed facts of this case, that a “tender” occurs between LCDC and BWS when LCDC signs a main-extension agreement after BWS’s testing protocol. The undisputed evidence is that LCDC signed a main-extension agreement for only those waterlines in sections 16A and 16B of the Lake Cyrus development. This Court’s holding in Bessemer I that LCDC may elect to “tender” additional lines to BWS, but that it is under no obligation to do so, remains the law of the case. 959 So.2d at 652. Additionally, in the absence of a written agreement between BWS and LCDC, any “tender” of waterlines to BWS post-Bessemer I, under the evidence submitted to the trial court, should have been pursuant to a signed main-extension agreement in accordance with BWS’s customary practice of inheriting waterlines from a developer. Because the trial court’s judgment regarding the manner for a “tender” not only is ambiguous, but also is unsupported by the evidence, its judgment concerning ownership of the waterlines is due to be reversed. See Scott v. McGriff, 222 Ala. 344, 346,132 So. 177, 179 (1930) (“The rule that the finding and conclusion of the trial court on testimony given ore tenus will be accorded the weight of the verdict of a jury, and will not be disturbed unless contrary to the great weight of the evidence, is without application, where the evidence is without dispute and but one conclusion can be drawn from it.”).

V Conclusion

The trial court’s finding that Givianpour, LCDC’s president, had knowledge before the 1998 water agreement was executed that the agreement was in violation of the competitive-bid law, § 39-2-2, Ala. Code 1975, was not supported by clear and convincing evidence. Further, the trial court’s finding regarding how a “tender” of waterlines occurred in the absence of a valid written agreement was not supported by the evidence. Accordingly, the trial court’s denial of LCDC’s postjudgment motion seeking relief from the November 13, 2009, judgment is due to be reversed and the case remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

STUART, SHAW, MAIN, WISE, and BRYAN, JJ., concur.

MURDOCK, J., concurs specially.

MOORE, C.J., and PARKER, J., concur in the result.

MURDOCK, Justice

(concurring specially).

I question the holding of the Court in Bessemer Water Service v. Lake Cyrus Development Co., 959 So.2d 643 (Ala.2006) (“Bessemer /”), that waterlines installed by a private developer on what, at the time of installation, was the developer’s privately owned land constituted a “public works” on “public property” under §§ 39-5-1(4) and (5), Ala.Code 1975. That decision, however, is res judicata and is not, in its own right, before this Court today. Nonetheless, based in part on the foregoing, I certainly agree with the main opinion that the evidence does not indicate that LCDC knew — indeed, I submit that, before the Court’s decision in Bessemer I, it had no reason to know — that its installation of waterlines within the boundaries of its own property under the circumstances presented would be in violation of some public-bid law, e.g., § 39-2-2.

      . This case was mistakenly placed on this Court’s administrative docket in September 2011. It was not assigned to Justice Bolin until October 31, 2013. We regret the delay in the issuance of a decision in this appeal.

      . While this case was pending on appeal, Luther Strange succeeded Troy King as attorney general. By virtue of Rule 43(b), Ala. R.App. P., Attorney General Strange was automatically substituted as a party.

      . The $224,979.83 represents the amount the trial court awarded LCDC in its March 8, 2005, order. BWS deposited the money with the clerk of the circuit court, and the money was thereafter disbursed to LCDC. This Court ordered LCDC to restore the money to the clerk of the circuit court. However, LCDC had already spent the money, so the clerk of the circuit court accepted a property bond in lieu of cash.

      . The parties do not address the timeliness of the action brought by the attorney general, i.e., whether the action was “commenced within three years of final settlement of the contract.”

      . We note that it appears from the transcript that, following the hearing, the trial judge instructed the parties to "brief the matters.” The post-hearing briefs are not included in the record. It appears, however, that, based on the terminology used by BWS in its brief on appeal, the trial court took BWS's position in fashioning its judgment. Because the testimony regarding the procedure customarily used by BWS for inheriting waterlines was undisputed, our review of the evidence is de novo and the trial court’s judgment is not accorded any presumption of correctness. Bessemer I.

      . For that matter, I do not understand how the contractual arrangement at issue lent itself in any practical or logical way to the letting of public bids. It was a contract between a provider of a utility service and a single customer describing the terms and conditions under which the provider would provide a utility service to that single customer through transmission lines to be installed by that customer on its own property. It was, in its essence, simply an agreement for the provider to reimburse that single customer for some of the costs that customer would incur to install waterlines on its own property, this being partial consideration for that private party’s choosing to receive water through those lines from that provider rather than some other provider. There was no other party to bid on the terms and conditions of this one-on-one arrangement. It certainly was not for BWS to decide whether to engage some third party to install such lines; this was a decision belonging solely to LCDC, the sole owner of the property and the transmission lines at the time of the installation.