source: Caselaw Access Project

author: BRYAN, Justice. MURDOCK, Justice SHAW, Justice

license: Public Domain

text:
    Frank A. MOULTRIE v. Charles O. WALL II and Autauga Automotive, LLC.
    1111507.
    Supreme Court of Alabama.
    Sept. 13, 2013.
    Rehearing Denied Nov. 22, 2013.

      Robert E. Riddle and Chip Cleveland of Cleveland & Riddle Attorneys at Law, LLC, Prattville; and Jeremy S. Walker of Haskell, Slaughter, Young & Gallion, LLC, Montgomery, for appellant.
    W. Allen Sheehan and Lee M. Russell, Jr., of Capell & Howard, P.C., Montgomery; Frank H. Hawthorne, Jr., of Hawthorne & Myers, LLC, Montgomery; and George P. Walthall, Jr., Prattville, for ap-pellees.
   BRYAN, Justice.

Frank A. Moultrie appeals from a judgment of the Autauga Circuit Court assessing attorney fees and costs to Moultrie after finding him in contempt for violating the terms of a temporary restraining order (“TRO”) entered by the circuit court. We dismiss the appeal in part and affirm the judgment.

Procedural History

On December 1, 2011, Charles 0. Wall II, individually and as the manager of Au-tauga Automotive, LLC (“Autauga Automotive”), and Autauga Automotive sued Moultrie, seeking a TRO, a preliminary injunction, and a judgment declaring Moul-trie’s and Wall’s respective rights in Au-tauga Automotive. In the complaint, Wall and Autauga Automotive (hereinafter referred to collectively as “the plaintiffs”) asserted that Autauga Automotive was created to own and operate an automobile dealership in Prattville (“the dealership”). Wall and Moultrie are the only members of Autauga Automotive, and Wall was the general manager of the dealership, which sells vehicles manufactured by Ford Motor Company (“Ford”).

The complaint alleged that the operating agreement pertaining to Autauga Automotive was amended on August 20, 2009, to reflect that Moultrie owned 51% and Wall owned 49% of the capital of Autauga Automotive, that they would share any profits and losses in the same percentages, and that Wall was the manager and the registered agent of Autauga Automotive. The complaint further alleged that on or about December 15, 2009, Wall and Moultrie met the comptroller and the certified public accountant for Autauga Automotive to discuss, among other things, tax planning and the allocation of profits and losses. During that meeting, the plaintiffs allege, Wall and Moultrie orally agreed that the profits and losses of Autauga Automotive for 2009 were to be allocated 90% to Wall and 10% to Moultrie. The plaintiffs alleged that the profits and losses of Autauga Automotive were allocated to Moultrie and Wall in the same manner in 2010.

On November 21, 2011, Wall received notice from Moultrie of a special meeting of the members of Autauga Automotive to be conducted on December 5, 2011. The proposed agenda for that meeting included removing Wall as the manager of Autauga Automotive, removing Wall as the general manager of the dealership, and discussing the sale of Autauga Automotive or its assets.

The plaintiffs sought a TRO preventing Moultrie from holding the December 5 meeting, preventing him from making any attempt to sell Autauga Automotive or its assets, and preventing him from taking any actions that would be detrimental to Autauga Automotive, the dealership, or Wall. The plaintiffs also sought a judgment declaring that Wall’s interest in the profits and losses of Autauga Automotive was 90%, that Wall was the “majority in interest” member of Autauga Automotive, and that Moultrie lacked the authority to, among other things, remove Wall as the general manager of the dealership. The plaintiffs alleged that, pursuant to Autauga Automotive’s operating agreement, Wall possessed the majority interest in Autauga Automotive because, they alleged, he owned a 90% interest in the profits and losses of Autauga Automotive and, thus, controlled the voting interests of Autauga Automotive. The plaintiffs alleged that Moultrie was under the mistaken belief that his 51% interest in the capital of Autauga Automotive gave him the majority interest in Autauga Automotive.

The plaintiffs further alleged that Wall, Autauga Automotive, Autauga Automotive’s employees, and the dealership would suffer immediate and irreparable harm if Moultrie was allowed to take the actions set forth in the notice provided to Wall. They alleged that Wall had successfully and profitably managed Autauga Automotive and the dealership since Autauga Automotive’s inception, that Wall was the contact person in all dealings with Ford, and that any interruption in Wall’s dealings with Ford would directly jeopardize Autauga Automotive’s agreements with Ford and the ability of the dealership to do business as a Ford dealership. The plaintiffs set forth several reasons why Ford was unlikely to approve Moultrie as the new general manager of the dealership and alleged that the removal of Wall as the manager of Autauga Automotive and as the general manager of the dealership would cause “the current profitability of both to significantly decrease, [would cause] damage [to] Autauga Automotive’s relationship with Ford[,] and [would] likely cause a mass departure of employees.”

On December 2, 2011, the circuit court entered a TRO enjoining Moultrie, or anyone acting on his behalf, from holding a special meeting of the members of Autau-ga Automotive and taking the actions set forth in the notice sent to Wall, from taking any action to sell Autauga Automotive or its assets, or from taking “any further actions that are detrimental to the best interest of Autauga Automotive, ... the automotive dealership arrangement held by it[,] or ... Wall.” The circuit court scheduled a hearing on the plaintiffs’ motion for a preliminary injunction for December 12, 2011.

On December 9, 2011, Moultrie removed the action to the United States District Court for the Middle District of Alabama. On December 12, 2011, the day the TRO was to expire, United States District Judge Keith Watkins remanded the case, sua sponte, to the circuit court, concluding that the federal court did not have jurisdiction over the action. That same day, the plaintiffs moved the circuit court to extend the TRO based on the federal court’s remand order. On December 13, the circuit court scheduled the preliminary-injunction hearing for the following day. On December 14, the circuit court entered an order, based on an agreement of the parties, stating that the TRO entered on December 2 remained in effect pending further orders of the court.

On January 3, 2012, Moultrie filed an answer and a counterclaim. Moultrie alleged, among other things, that Wall had breached fiduciary duties he owed Autauga Automotive as its manager and that Wall had breached the operating agreement of Autauga Automotive. Moultrie also sought a preliminary injunction seeking, among other things, to prohibit Autauga Automotive from paying Wall anything except his monthly salary. Moultrie also moved the circuit court to dismiss any claim brought by Autauga Automotive. In his motion to dismiss, Moultrie alleged that, because Moultrie owned a 51% majority interest in Autauga Automotive, Wall lacked standing to bring suit on behalf of Autauga Automotive without Moul-trie’s approval or consent.

On February 13, 2012, Wall filed a petition seeking to hold Moultrie in contempt for violating the terms of the TRO. Wall alleged that “certain important documents ha[d] been removed without proper authorization from the ... dealership.” Wall alleged that the documents, which were required by Ford to be maintained at all times on the dealership’s premises, were missing; that those documents had been removed by an employee “believed to be in contact, and working at the direction and in concert, with [Moultrie]”; that Wall’s counsel had informed Moultrie’s counsel of the missing documents and had expressed concern that Moultrie was in possession of the documents; that, subsequently, Moul-trie’s counsel had represented to Wall’s counsel that the documents in question would be returned to the dealership the following day; that a courier from one of Moultrie’s businesses had brought copies of some of, but not all, the missing documents to the dealership; and that no additional documents had been returned since February 3, 2012. Wall requested an award of costs for filing the motion and an award of damages to prevent further violations of the TRO.

On February 21, 2012, the plaintiffs amended their complaint, adding a claim to enforce a “letter of intent” signed by Moul-trie and acknowledged by Wall in October 2011 indicating that Moultrie intended to sell his interest in Autauga Automotive. The circuit court entered an order on February 22, 2012, indicating that the parties were working together to arrive at a mutually agreeable temporary arrangement. On February 27, 2012, the circuit court entered an amended TRO, based on an agreement of the parties, that was to remain in effect pending further order of the court. The amended TRO left in place the terms of the original TRO, but it also prohibited the plaintiffs from, among other things, paying any amount to Wall other than a rental payment and his monthly salary, incurring non-business-related debts in the name of Autauga Automotive, causing Autauga Automotive to pay or incur legal fees in the prosecution of this action after February 22, 2012, and taking any actions that were detrimental to the interests of Autauga Automotive, the dealership, or Moultrie.

On March 20, 2012, the day before the final hearing in this matter was scheduled to take place, all four attorneys representing Moultrie filed a motion for leave to withdraw from the case. The same day, Wall filed a second petition seeking to hold Moultrie in contempt for violating the TRO and the amended TRO. Wall alleged that Moultrie had admitted in his deposition that he had contacted Ford to report warranty fraud occurring at the dealership and that, as a result of that report to Ford, Autauga Automotive had incurred “significant financial penalties.” Wall alleged that the dealership had been penalized by Ford because of the missing documents that had been removed from the premises of the dealership at Moultrie’s direction. Wall also alleged that Moultrie had disregarded a March 15, 2012, order of the circuit court that had required him to provide the plaintiffs any and all financial documents or records involving him, Au-tauga Automotive, and the dealership by March 16, 2012. Further, Wall alleged that, in violation of the TRO and without Wall’s knowledge or permission, Moultrie had entered into a written agreement to sell “100%” of Autauga Automotive to Sansing Holdings, LLC, and that Moultrie had assigned the right to the proceeds of the sale to Citizens Bank & Trust of Gun-tersville as collateral for a loan to Moultrie Nissan, a separate automobile dealership in which Moultrie possessed an ownership interest. The circuit court allowed Moul-trie’s attorneys to withdraw and postponed the final hearing that had been scheduled for March 21.

On May 1, 2012, Moultrie filed a motion seeking the return of funds of Autauga Automotive and a petition seeking to hold Wall in contempt. Moultrie alleged that Wall had used dealership funds to pay his personal income taxes in violation of the amended TRO. On May 22, 2012, Moultrie filed a second petition for contempt and a second motion seeking the return of funds, alleging that Wall had violated the terms of the amended TRO by paying his attorney fees using funds from Autauga Automotive.

After conducting a hearing, the circuit court entered a judgment on May 29, 2012, finding Moultrie in contempt for violating the TRO and the amended TRO based on his having entered into a “sales agreement” with Sansing Holdings, LLC, and having pledged the right to the proceeds from that sale as security for a loan from the Citizens Bank & Trust of Guntersville. The circuit court also found Moultrie in contempt for causing Ford to conduct an audit of the dealership, which audit resulted in a penalty being assessed against the dealership as a result, in part, of the absence of documents that were removed from the dealership at Moultrie’s instructions. The circuit court ordered Moultrie to pay the dealership $25,000, which was the penalty assessed against the dealership by Ford. Moultrie was also ordered to pay Wall’s attorney fees and costs incurred from February 22, 2012, through May 29, 2012. The court stated that it would enter further orders setting forth the amount to be paid by Moultrie after Wall’s counsel submitted their bills and costs to the court. In a separate judgment entered on May 29, 2012, the circuit court denied Moul-trie’s motions seeking the return of funds and his petitions seeking to hold Wall in contempt.

On June 21, 2012, the circuit court entered a judgment assessing $132,345.57 in attorney fees and costs against Moultrie. The circuit court’s June 21, 2012, judgment “specifically assessing attorney fees and costs” provided:

“In this Court’s order of May 29, 2012, in which it found Defendant Frank Moultrie in [cjontempt, the [cjourt assessed [Walll’s attorney fees and costs incurred from February 22, 2012, through May 29, 2012, against Mr. Moul-trie.
“The Court has now had the opportunity to review itemized statements and cost bills presented by [Walll’s counsel as well as the affidavit of Attorney Si-meon Penton attesting to the reasonableness of the attorney fees incurred. The [c]ourt finds that the fees and expenses incurred are reasonable for the work performed in the prosecution of the [petitions for [cjontempt which were filed and prosecuted against Frank Moultrie;
“It is therefore [ojrdered that Frank Moultrie shall pay the following on or before August 24, 2012:
“Hawthorne & Meyers, LLC — attorney fees and expenses of $10,546.62 plus costs incurred for Dr. Richard Roper of $2450.00;[]
“Law Office of George P. Walthall, Jr. — attorney fees and expenses of $38,538.80;
“Capell & Howard, P.C. — attorney fees and expenses of $80,335.65 plus costs of $475.00 incurred for Research Services Investigative Specialists.
“The Court has not assessed expenses for Jackson & Thornton at this time as it cannot determine whether its bill is directly related to the contempt issues.
“It is further [ojrdered that the itemized attorney fees and expenses submitted to the [cjourt for in camera review shall be filed and kept ‘under seal’ pending further orders of this [cjourt.”

On June 29, 2012, Moultrie filed a “motion to reconsider” the assessment of attorney fees. On July 9, 2012, the circuit court entered an order denying Moultrie’s postjudgment motion, stating that it had relied on its experience in setting the attorney-fee award and that the attorney fees and costs Moultrie had been ordered to pay as a result of his contempt and his failure to follow the court’s orders were “extremely appropriate under the circumstances.” Moultrie filed a notice of appeal on August 19, 2012. On appeal, Moultrie challenges parts of the May 29, 2012, contempt judgment as well as the June 21, 2012, judgment assessing attorney fees and costs.

Jurisdiction

Rule 70A(g)(2), Ala. R. Civ. P., provides that a contempt adjudication is reviewable by appeal. This Court has previously reviewed a contempt adjudication by appeal even though there had not been a final judgment on the merits in the underlying proceeding. See Gilbert v. Nicholson, 845 So.2d 785 (Ala.2002). Moreover, the circuit court’s failure to adjudicate the amount of the attorney fees to be awarded Wall did not affect the finality of the contempt adjudication. See State Bd. of Educ. v. Waldrop, 840 So.2d 893, 899 (Ala. 2002) (citing Budinich v. Becton Dickinson & Co., 486 U.S. 196, 199-200, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988)) (“[A] decision on the merits disposing of all claims is a final decision from which an appeal must be timely taken, whether a request for attorney fees remains for adjudication.”); and R.J.G. v. S.S.W., 42 So.3d 747, 750 n. 1 (Ala.Civ.App.2009) (holding that the trial court’s judgment finding the father in contempt was final and appealable even though the trial court had determined, in that judgment, that the mother was due an award of attorney fees but had not determined the amount of attorney fees the mother should be awarded). Cf. Eagerton v. Vision Bank, 99 So.3d 299, 303 (Ala.2012) (concluding that a summary-judgment order was final and appealable despite the fact that the trial court reserved jurisdiction to determine the appropriate amount of attorney fees and costs owed to one of the parties).

However, the timeliness of an appeal affects this Court’s jurisdiction to consider the appeal. Therefore, we first consider whether Moultrie’s appeal, insofar as it challenges parts of the May 29, 2012, contempt judgment, is timely. See Miller Props., LLC v. Green, 958 So.2d 850, 851-52 (Ala.2006) (holding that an untimely filed postjudgment motion does not toll the time for filing a notice of appeal and that this Court has no jurisdiction over an untimely filed appeal).

Moultrie did not file a postjudgment motion within 30 days of the circuit court’s entry of the contempt judgment on May 29, 2012. See Rule 59(b), Ala. R. Civ. P. Thus, he was required to file his notice of appeal from the contempt judgment within 42 days of its entry on May 29, 2012, i.e., on or before July 10, 2012. See Rule 4(a)(1), Ala. R.App. P. Moultrie did not file a notice of appeal until August 19, 2012. Accordingly, insofar as any aspect of Moultrie’s appeal challenges the contempt judgment entered on May 29, 2012, the appeal is untimely and is due to be dismissed.

Furthermore, to the extent that Moultrie challenges the circuit court’s amended TRO, which was entered by agreement of the parties on February 27, 2012, the time for appealing that order had long passed when Moultrie filed his notice of appeal on August 19, 2012. See Rule 4(a)(1)(A), Ala.R.App. P. Thus, we dismiss Moultrie’s appeal insofar as it relates to the May 29, 2012, contempt judgment or the February 27, 2012, TRO.

However, Moultrie filed a timely postjudgment motion challenging the circuit court’s June 21, 2012, judgment assessing attorney fees and costs against Moultrie, which suspended the time for appealing that judgment. See Rule 4(a)(3), Ala. RApp. P. Because Moultrie filed his notice of appeal within 42 days from the date his postjudgment motion was denied, this Court has jurisdiction to consider the propriety of the June 21, 2012, judgment assessing attorney fees and costs against Moultrie. Rule 4(a)(1) and (3), Ala. R.App. P.

Propriety of the Award of Attorney Fees

Moultrie argues that the circuit court exceeded its discretion by assessing what he says is an unreasonable amount of attorney fees against him.

“The determination of whether an attorney fee is reasonable is within the sound discretion of the trial court and its determination on such an issue will not be disturbed on appeal unless in awarding the fee the trial court exceeded that discretion. State Bd. of Edue. v. Waldrop, 840 So.2d 893, 896 (Ala.2002); City of Birmingham v. Horn, 810 So.2d 667, 681-82 (Ala.2001); Ex parte Edwards, 601 So.2d 82, 85 (Ala.1992), citing Porner v. Century Fin. Co., 738 F.2d 1143 (11th Cir.1984).
“This Court has set forth 12 criteria a court might consider when determining the reasonableness of an attorney fee:
“‘(1) [T]he nature and value of the subject matter of the employment; (2) the learning, skill, and labor requisite to its proper discharge; (3) the time consumed; (4) the professional experience and reputation of the attorney; (5) the weight of his responsibilities; (6) the measure of success achieved; (7) the reasonable expenses incurred; (8) whether a fee is fixed or contingent; (9) the nature and length of a professional relationship; (10) the fee customarily charged in the locality for similar legal services; (11) the likelihood that a particular employment may preclude other employment; and (12) the time limitations imposed by the client or by the circumstances.’
“Van Schaack v. AmSouth Bank, N.A., 530 So.2d 740, 749 (Ala.1988). These criteria are for purposes of evaluating whether an attorney fee is reasonable; they are not an exhaustive list of specific criteria that must all be met. Beal Bank v. Schilleci, 896 So.2d 395, 403 (Ala.2004), citing Graddick v. First Farmers & Merchants Nat’l Bank of Troy, 453 So.2d 1305, 1311 (Ala.1984).
“We defer to the trial court in an attorney-fee case because we recognize that the trial court, which has presided over the entire litigation, has a superior understanding of the factual questions that must be resolved in an attorney-fee determination. Horn, 810 So.2d at 681-82, citing Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Nevertheless, a trial court’s order regarding an attorney fee must allow for meaningful appellate review by articulating the decisions made, the reasons supporting those decisions, and how it calculated the attorney fee. Horn, 810 So.2d at 682, citing American Civil Liberties Union of Georgia v. Barnes, 168 F.2d 423, 427 (11th Cir.1999); see also Hensley, 461 U.S. at 437, 103 S.Ct. 1933.”

Pharmacia Corp. v. McGowan, 915 So.2d 549, 552-53 (Ala.2004).

Moultrie argues that the circuit court’s June 21, 2012, judgment lacks the required specificity to allow for meaningful appellate review. Specifically, he contends that the judgment should be reversed because, he says, there is no indication that the circuit court considered each of the 12 factors set forth in Pharmacia. According to Moultrie, the record indicates that the circuit court considered only 3 of the' 12 factors: the amount of time consumed, the success achieved, and the reasonable expenses incurred. To support reversal on this basis, Moultrie relies on this Court’s decision in Peebles v. Miley, 439 So.2d 137, 141 (Ala.1983), in which this Court stated that “all of the criteria set forth above[, i.e., the 12 factors for determining the reasonableness of an attorney fee,] must be taken into consideration by the trier of the facts in determining a proper counsel fee.”

The record, which includes the affidavit of Simeon Penton, an attorney who testified as to the reasonableness of the attorney fees incurred, indicates that the circuit court considered evidence concerning both the fees customarily charged in the locality for similar legal services and the labor requisite to the proper discharge of the subject matter of the employment, in addition to evidence concerning the amount of time consumed, the measure of success achieved, and the reasonable expenses incurred; moreover, as set forth in the order denying Moultrie’s postjudgment “motion to reconsider,” the circuit court relied upon its own experience in setting attorney fees. Although the judgment assessing attorney fees does not expressly state that the circuit court considered each of the 12 factors set out in Pharmacia, Moultrie has failed to affirmatively demonstrate that the circuit court did not take into consideration all the pertinent criteria for determining the reasonableness of an attorney fee. “[W]e are governed by the long-standing, well-established rule that the appellant has an affirmative duty of showing error upon the record.” Tucker v. Nichols, 431 So.2d 1263, 1264 (Ala.1983). Moreover, as this Court stated in Pharma-cia, the 12 factors are factors that “a court might consider when determining the reasonableness of an attorney fee,” 915 So.2d at 552 (emphasis added), but the 12 factors “are not an exhaustive list of specific criteria that must all be met.” 915 So.2d at 553. Accordingly, we will not reverse the circuit court’s judgment on the sole basis that it does not, on its face, specifically indicate that it considered each of the 12 Pharmacia factors.

Moultrie further argues that the circuit court’s judgment lacks the required specificity because neither the judgment nor the record provides an account of the time spent by Wall’s attorneys on the contempt issues. In Madison County Department of Human Resources v. T.S., 53 So.3d 38 (Ala.2009), this Court remanded a case in which the trial court had entered a judgment assessing attorney fees and instructed the trial court to enter an order “explaining its decision and articulating its reasons for that decision.” 53 So.3d at 45. In that case, the trial court had assessed a fee of $262,500, which was 33 1/3% of the attorney’s recovery for his minor client. In its judgment assessing the attorney fee, the trial court held: “‘Based upon the evidence, the [c]ourt concludes that the attorney fees and expenses sought by counsel are just, fair and equitable for the service he has rendered.’ ” Id. at 43. The evidence presented to the trial court to support the attorney fee was an affidavit from the attorney in question, as well as two affidavits from local attorneys who stated that, in their opinions, the attorney fee of $262,500 was reasonable. Id.

This Court held:

“[T]he trial court’s order approving an attorney fee in the amount of $262,500 plus litigation expenses in the amount of $29,315.99 provides no indication as to whether the trial court considered the criteria set forth for determining the reasonableness of an attorney fee as detailed in Pharmacia, nor does it indicate how the trial court calculated the attorney fee. Although the trial court states that its decision is based on the evidence, it provides no detailed application of the facts regarding [the attorney] fee to the factors set forth in Pharmacia. Additionally, although the record is filled with explanation for the litigation expenses, the record contains no evidence detailing the attorney fee for [the attorney in question]. For instance, it does not contain any document detailing the time [the attorney] spent working on the case. As we stated in Pharmacia, ‘[i]t is generally recognized that the “first yardstick that is used by the trial judges [in assessing the reasonableness of an attorney-fee request] is the time consumed.” Peebles v. Miley, 439 So.2d 137, 141 (Ala.1983).’ 915 So.2d at 553.... Without some explanation by the trial court with regard to its consideration of the 12 factors set out in Van Schaack v. AmSouth Bank, N.A., 530 So.2d 740, 749 (Ala.1988), and discussed in Pharmacia and how it calculated the attorney fee, we cannot ascertain whether the trial court exceeded its discretion in awarding that fee.”

Id. at 44-45.

In the present case, the circuit court’s judgment does indicate that the circuit court considered the criteria for determining the reasonableness of an attorney fee set forth in Pharmacia and Van Schaack v. AmSouth Bank, N.A., 530 So.2d 740 (Ala.1988). The circuit court’s judgment also indicates how the circuit court calculated the attorney fee — by relying on the itemized statements and cost bills presented by Wall’s attorneys. The record does not contain the itemized billing statements from Wall’s attorneys because the itemized billing statements from Wall’s attorneys were sealed; however, it is undisputed that the circuit court considered itemized billing statements from Wall’s attorneys before it assessed the attorney-fee award. In this appeal, Moultrie has not specifically challenged the circuit court’s decision to keep that evidence sealed. Moultrie also has not taken any steps to have the sealed records, which were evidence used to support the circuit court’s judgment, made available for this Court’s review. “This Court has ... held that when all the evidence before the trial court is not before this Court, it is presumed that the missing evidence is sufficient to support the judgment and the judgment should not be disturbed.” Seidler v. Phillips, 496 So.2d 714, 716 (Ala.1986).

Moultrie further argues that the circuit court’s attorney-fee award was unreasonable because, he says, the fees were excessive and redundant. He contends that the circuit court was required to deduct excessive, redundant, or otherwise unnecessary hours billed by Wall’s attorneys when determining the total amount of attorney fees to be assessed against Moultrie. Cf. Norman v. Housing Auth. of the City of Montgomery, 836 F.2d 1292, 1301 (11th Cir.1988) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)) (applying the lodestar approach to determining attorney fees in a class action and stating that ‘excessive, redundant or otherwise unnecessary’ hours should be excluded from the amount claimed”). Moultrie argues that, because he has not been permitted to review the itemized billing statements presented to the Court, he has “no other choice but to assume [the] fees are grossly excessive and unreasonable.” Moultrie’s brief, at 24. Moultrie points out that one of Wall’s attorneys, Frank Hawthorne, filed a notice of appearance on May 18, 2012, only 11 days before the hearing on Wall’s contempt petitions, yet his firm was awarded $10,546.62 in attorney fees and expenses. Moultrie also argues that Hawthorne was one of four attorneys who participated in the contempt hearing on behalf of Wall and that the other three attorneys were capable of handling the contempt issues without Hawthorne’s assistance.

However, in order to reverse the circuit court’s judgment based on the excessiveness or redundancy of the attorney fees, this Court would be required to assume that Hawthorne’s fees, or any other attorney fees in the itemized billing statements presented to the circuit court, were excessive, redundant, unnecessary, or otherwise unreasonable. As noted previously, however, the law forbids this Court from presuming that the circuit court erred. See Tucker v. Nichols, 431 So.2d at 1265-66. Furthermore, we disagree with Moultrie’s implicit argument that the award of attorney fees to Hawthorne’s firm was unreasonable on its face. The affidavit of attorney Penton indicates that Hawthorne’s hourly rate was $300. Assuming that Hawthorne’s bill was based solely on hours he had expended on the case, Hawthorne would have accumulated $10,546.62 in fees in approximately 35 hours. This could have occurred by billing slightly more than three hours per day from the date he filed his notice of appearance to the date of the hearing on the contempt petitions.

In response to Wall’s argument on appeal that Moultrie’s “bad acts” further support the circuit court’s assessment of attorney fees and costs, Moultrie contends that his actions do not merit such a sanction. However, it is evident from the May 29, 2012, contempt judgment that the circuit court found Moultrie guilty of what amounts to flagrant violations of the TRO and the amended TRO entered by the circuit court. Based on the arguments presented by Moultrie in this appeal, we cannot conclude that Moultrie has affirmatively demonstrated that the circuit court exceeded its discretion by assessing $132,345.57 in attorney fees and costs against Moultrie. Accordingly, the judgment assessing attorney fees and costs is due to be affirmed.

APPEAL DISMISSED IN PART; JUDGMENT OF JUNE 21, 2012, AFFIRMED.

MOORE, C.J., and STUART, PARKER, MAIN, and AVISE, JJ., concur.

MURDOCK and SHAW, JJ., dissent.

MURDOCK, Justice

(dissenting).

I respectfully dissent.

A.

The main opinion cites State Board of Education v. Waldrop, 840 So.2d 893, 899 (Ala.2002), for the proposition that “the circuit court’s failure to adjudicate the amount of the attorney fees to be awarded” to Charles O. Wall II as a sanction for the contempt of which Frank A. Moultrie was found guilty “did not affect the finality of the contempt adjudication.” 143 So.3d at 134. Waldrop is distinguishable from the present case, however, because it was not a contempt proceeding. The case of Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988), upon which Waldrop relies, also is distinguishable because it too was not a contempt proceeding. As in Waldrop, the judgment evaluated for appealability in Budinich was a judgment resolving underlying tort claims as to which an award of attorney fees was a collateral issue.

Here, the adjudication at issue is not of an underlying tort or contract claim, as to which an award of attorney fees would in fact be collateral or incidental. Instead, the claim is one of contempt. As to that claim, the award of attorney fees is an intrinsic part of the relief sought and obtained.

In a conventional tort or contract action, the purpose of the action is to have the court address wrongful, extrajudicial behavior of a defendant, typically by providing relief in the form of money damages or an injunction. In contrast, the purpose of a contempt claim is to have the court address the wrongful litigation behavior of a party, usually by means of a “sanction” for that behavior. Typical of such sanctions is an award of attorney fees against the contumacious party. Until the amount of those fees are set by the court, therefore, the contempt judgment is not final. As to a contempt claim, there can no more be a final, appealable order on the merits based merely on decision that there is to be a payment of attorney fees as a sanction without a decision as the amount of the fees thus to be paid than there could be a final, appealable order on the merits of a contract or tort action based merely on a decision that there is to be a payment of compensatory and punitive damages without a decision as to the amount of the damages to be paid.

In Budinich, the Supreme Court observed that “ ‘[a] “final decision” generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ Catlin v. United States, 324 U.S. 229, 233 (1945).” Budinich, 486 U.S. at 199. No such executable “final decision” as to the claim seeking a contempt judgment and sanctions was entered in this case until the trial court did in fact set the amount of those sanctions.

The Budinich Court continued:

“A question remaining to be decided after an order ending litigation on the merits does not prevent finality if its resolution will not alter the order or moot or revise decisions embodied in the order. See, e.g., Brown Shoe Co. v. United States, 370 U.S. 294, 308-309 (1962); Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 513-516 (1950).”

Id. (emphasis added). Unlike the collateral relationship between the resolution of a request for attorney fees and the adjudication of conventional tort and contract claims as in Budinich, the resolution of an attorney-fee claim in a contempt action will satisfy the above-emphasized test. That is, because it is the substance or essence of the claim and relief pursued in the contempt action, the setting of the amount of the sanction necessarily “will ... alter the order or moot or revise decisions embodied in the order.”

The Budinich Court also stated:

“In White v. New Hampshire Dept, of Employment Security, 455 U.S. 445 (1982), we held that a request for attorney’s fees under 42 U.S.C. § 1988 is not a motion ‘to alter or amend the judgment’ within the meaning of Federal Rule of Civil Procedure 59(e) because it does not seek ‘reconsideration of matters properly encompassed in a decision on the merits.’ 455 U.S., at 451. This holding was based on our conclusion that ‘a request for attorney’s fees under § 1988 raises legal issues collateral to’ and ‘separate from’ the decision on the merits. Id., at 451-452.... See also Sprague v. Ticonic National Bank, 307 U.S. 161, 170 (1939) (observing that a petition for attorney’s fees in equity is ‘an independent proceeding supplemental to the original proceeding and not a request for a modification of the original decree’).”

486 U.S. at 200 (emphasis added). Here, the attorney-fee request is a, if not the, primary “matter[] properly encompassed in a decision on the merits ” of the contempt petition.

The Budinich Court further explained:

“If one were to regard the demand for attorney’s fees as itself part of the merits, the analysis would not apply. The merits would then not have been concluded, and [28 U.S.C.] § 1291 finality would not exist. See Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 740-742 (1976). As a general matter, at least, we think it indisputable that a claim for attorney’s fees is not part of the merits of the action to which the fees pertain. Such an award does not remedy the injury giving rise to the action, and indeed is often available to the party defending against the action. At common law, attorney’s fees were regarded as an element of ‘costs’ awarded to the prevailing party, see 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure: Civil § 2665 (1983), which are not generally treated as part of the merits judgment, cf. Fed. Rule Civ. Proc. 58 (‘Entry of the judgment shall not be delayed for the taxing of costs’).”

486 U.S. at 200-01 (emphasis other than on “itself’ added).

The opposite of everything the Budinich Court said in the foregoing passage as to the relationship of attorney fees to the merits of the underlying tort claim at issue there can be said of the relationship of an attorney-fee award to the contempt claim here. “[T]he demand for attorney’s fees [is] part of the merits ” and therefore “the analysis [does] apply.” Perhaps most telling is the fact that, in regard to a conventional tort claim, an award of attorney fees is in fact collateral and, as the Budinich Court explained, “does not remedy the injury giving rise to the action,” whereas the opposite is true here. Budi-nich, 486 U.S. at 200. The gravamen of the contempt action here is the bad litigation behavior of the opposing party. Correcting that behavior is the purpose of the action. Sanctions in the form of attorney fees are intrinsic to that end and are a central part of the relief sought, not incidental to the relief sought. Until such sanctions have been awarded, there is no final and appealable judgment on the contempt petition itself. Furthermore, treating the contempt judgment as final before the requested sanction for the contempt is decided upon by the trial court is to encourage piecemeal appeals, as well as appeals from orders that might not have been appealed if the defendant had known the ultimate amount of sanctions that would be awarded.

Although there are decisions that take a different view of the Budinich holding as it relates to contempt proceedings, I find more persuasive the view expressed above and by the United States Court of Appeals for the Third Circuit in Napier v. Thirty or More Unidentified Federal Agents, Employees or Officers, 855 F.2d 1080 (3d Cir.1988). In Napier, the federal appeals court addressed an order of a federal district court entered on May 20, 1987, in which the district court ruled that “ ‘sanctions shall be imposed on plaintiffs counsel.’ ” Id. at 1084. The amount of those sanctions, however, was not set by the district court until a later date, June 29, 1987. The Court of Appeals explained the difference between (a) that sanction award and the contempt judgment of which it was a part and (b) the award of attorney fees that was collateral to the tort judgment in Budinich:

“The defendants argue that [the plaintiffs] appeal with respect to the sanctions was untimely. They say that [the plaintiff] had to appeal the May 20, 1987 order determining that sanctions would be levied against him and that his August 4 appeal was out of time....
“As a general rule, when a district court determines liability before determining the damages amount, the liability determination is not appealable until judgment has been entered on the amount. In re Jeannette Corp., 832 F.2d 43, 45 (3d Cir.1987) (‘until fixed in amount, an award of attorneys’ fees is not a final order for purposes of appeal’); Sauter v. Ross Restaurants, Inc., 674 F.2d 194, 197 (3d Cir.1982) (decision is appealable if it terminates litigation and ‘leaves nothing to be done but to enforce’ the judgment). In re Jeannette Corp. held that ‘[i]f sanctions are to be an assessment of counsel fees or expenses, they must be fixed before the order is final and appealable.’ 832 F.2d at 46. In re Jeannette Corp. is disposi-tive of this question unless recent Supreme Court jurisprudence undermines it.
“In Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988), the Supreme Court held that a determination of liability and damages is final despite a pending determination of costs and attorney’s fees. The rationale of Budinich is that the determination of costs and fees following entry of judgment involves considerations distinct from the underlying merits of the action itself. See West v. Keve, 721 F.2d 91 (3d Cir.1983) (viewing fee determination as collateral to merits decision thereby requiring appellants to appeal from earlier merits decision). We acknowledge a superficial similarity between the determination of the sanctions amount here and a determination of costs and attorneys fees such as might render the district court’s May 20 order an appealable order. We think that the better approach, however, is to analogize the situation before us to the traditional liability and damages scenario: the May 20 order determined liability, but the court’s order was not final and appealable until the June 29 order, which fixed damages.... Cf. United States v. Sleight, 808 F.2d 1012 (3d Cir.1987) (in criminal case, order that reasonable restitution shall be paid is not the final, appealable order, but only the order stating exact amount is appeal-able).
“More importantly, however, the decision to impose sanctions and the decision fixing the amount of the sanction are far more closely intertwined, both substantively and practically, than the decision about counsel fees and costs is to the underlying merits. Rule 11 [, Fed.R.Civ.P.,] ‘combines the concepts of deterrence and reimbursement,’ hence the district court in a sanctions determination may require ‘the offending client, lawyer or both to pay all or part of the adversary’s counsel fees incurred as a result of the violation.’ Gaiardo v. Ethyl Carp., 835 F.2d 479, 482 (3d Cir.1987) (emphasis added [in Napier ]).... Moreover, policy reasons support this view. To require an appeal from the decision to impose sanctions would engender needless appeals — which never would have been filed had the sanctions been fixed in a relatively small amount, a not uncommon occurrence. See In re Jeannette Corp., 832 F.2d at 45 (noting ‘concerns about duplicate expenditures of time and resources in coping with separate appeals initially from the award of fees and later from the calculation of the amount ’). Also supporting our conclusion is our longstanding antipathy to piecemeal appeals. See Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 92 (3d Cir.1988) (adopting supervisory rule requiring counsel to file Rule 11 motions before entry of final judgment by district court ‘to eliminate piecemeal appeals’). Thus nothing in Budinich undermines our earlier jurisprudence.”

855 F.2d at 1089-90 (some emphasis added; footnotes omitted). Cf. John v. Barron, 897 F.2d 1387, 1390 (7th Cir.l990)(holding that an award of attorney fees as a “sanction” for a violation of Rule 11, Fed.R.Civ.P., without setting the amount of that sanction is not a final, appealable order); Jensen Elec. Co. v. Moore, Caldwell, Rowland & Dodd, Inc., 873 F.2d 1327, 1329 (9th Cir.1989) (holding in a Rule 11 proceeding that “[t]he district court’s first order imposing sanctions but not setting an amount was ... not a final or appealable order” because “[a]n order awarding attorney’s fees which does not fully dispose of the issue of attorney’s fees is not a final, appealable order”); Gates v. Central States Teamsters Pension Fund, 788 F.2d 1341,1343 (8th Cir.1986) (holding that an order awarding attorney fees as a sanction for a Rule 11 violation “without determining the amount of that award is not an order which ‘leaves nothing for the court to do but execute upon the judgment.’ Catlin v. United States, 324 U.S. 229, 233 (1945),” and therefore is “not a final and appealable order”).

As Professors Wright and Miller have put it, “[a] determination that contempt has occurred is not final if the question of sanctions is postponed.... Finality, in short, requires determination of both liability and sanction, just as with ordinary civil and criminal proceedings.” 15B Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice & Procedure § 3917 (2d ed. 1992).

B.

I am concerned about a number of aspects of the award of attorney fees in this case. These include the sealed nature of evidence upon which the trial court based its judgment and its apparently unobject-ed-to unavailability (even in redacted form) to opposing counsel, as well as its unavailability to this Court as the result of its unobjected-to absence from the record on appeal. In addition, I am concerned about the fact that the trial court apparently made its decisions based upon only 3 or 4 of the 12 factors listed in Peebles v. Miley, 439 So.2d 137 (Ala.1983), and that the trial court does not appear to have been sufficiently specific as to its reasoning. Ultimately, a substantial question exists as to whether the total amount awarded to multiple attorneys and groups of attorneys for a limited amount as to a limited period of time was excessive and redundant. I dissent as to the affirmance of the attorney-fee award without reaching the merits of these issues, however, because I do not think we should address the merits of the attorney-fee issue without first addressing the merits of the contempt judgment itself, which, for the reasons explained in Part A of this writing, I believe has been timely appealed.

SHAW, Justice

(dissenting).

I respectfully dissent, and I concur with Part A of Justice Murdock’s dissenting opinion.

      . The plaintiffs attached affidavits from Au-tauga Automotive’s comptroller and certified public accountant verifying the plaintiffs' rendition of the facts in the complaint regarding Moultrie's and Wall's agreement in December 2009 to allocate 90% of Autauga Automotive's profits and losses to Wall and the remaining 10% of the profits and losses to Moultrie.

      . Judge Watkins noted in his remand order that he would entertain a motion for costs, attorney fees, or other appropriate sanctions pursuant to 28 U.S.C. § 1447(c) as a result of the improper removal of the action. The record on appeal does not indicate whether the plaintiffs filed such a motion in the federal court.

      . The circuit court's contempt judgment instructs Moultrie to pay "the plaintiff’s” attorney fees and costs. Because the petitions for contempt were filed by Wall, we assume that the circuit court was referring solely to Wall when it awarded those fees.

      . As a defense to Wall’s contempt petitions, Moultrie alleged that, without his knowledge, his brother Steve had signed his name to the sales agreement with Sansing Holdings, LLC, and that Steve had obtained a loan on behalf of Moultrie Nissan by pledging the right to the proceeds of the sale of Autauga Automotive as collateral for the loan. Roper is a handwriting expert who was used by Wall during the hearing on the contempt petitions to show that Moultrie, and not his brother Steve, had signed the sales agreement with Sansing Holdings, LLC.

      . The record indicates that Jackson & Thornton is a professional corporation that employs certified public accountants. The circuit court's contempt judgment required Moultrie to pay Wall's attorney fees and costs and ordered Wall's counsel to submit their bills and costs to the court. Neither party contends that a possible future award to Jackson & Thornton renders the circuit court's assessment of attorney fees and costs nonfinal.

      . "While the Alabama Rules of Civil Procedure do not speak of a ‘motion to reconsider,’ this Court has repeatedly construed motions so styled, when they have been filed within 30 days after the entry of a final judgment, to be Rule 59(e)[, Ala. R. Civ. P.,j motions." Evans v. Waddell, 689 So.2d 23, 26-27 (Ala. 1997).

      . Moultrie does challenge on appeal that aspect of the May 29, 2012, contempt judgment that required him to pay the dealership $25,000.

      . To the extent that Moultrie’s postjudgment ‘‘motion to reconsider,” which was filed on June 29, 2012, can be construed as a challenge to the contempt judgment entered on May 29, 2012, that motion was filed 31 days after the contempt judgment was entered.

      . Notably, Moultrie argued in response to Wall’s motion to dismiss Moultrie’s appeal to this Court that his “appeal arises from the trial court’s order of June 21, 2012, wherein the trial court ordered [Moultrie] to pay $132,435.57 in attorney's fees plus other expenses for work performed by the appellee's attorneys.” He further represented to this Court that "there is nothing in the May 29, 2012, order to appeal.” However, in his brief on appeal Moultrie challenges the circuit court’s May 29, 2012, judgment to the extent that it required him to pay the dealership $25,000. Moultrie argues that because, he says, he owns a majority interest in Autauga Automotive, Wall did not have "standing” to bring suit on behalf of Autauga Automotive and, thus, the circuit court lacked jurisdiction over Autauga Automotive. Although phrased as a “standing” issue, this is really an issue relating to Wall's “capacity” to sue on behalf of Autauga Automotive. It is undisputed between the parties that the majority member of Autauga Automotive, which issue has yet to be resolved by the circuit court, may bring suit on behalf of Autauga Automotive. Questions as to capacity are not jurisdictional in nature. See Penick v. Most Worshipful Prince Hall Grand Lodge F & AM of Alabama, Inc., 46 So.3d 416, 425 (Ala.2010) (noting that "a capacity defense ... does not per se implicate standing and subject-matter jurisdiction”). See also Ex parte Tyson Foods, Inc., [Ms. 1110931, May 24, 2013] — So.3d—,—(Ala.2013) (discussing "the standing/capacity dichotomy”). Accordingly, there is no need to address that argument at this time. Moreover, the question of Wall's status as the majority-interest holder in Autauga Automotive is at the heart of the underlying action. Wall sought a judgment declaring Wall's and Moultrie's respective interests in Autauga Automotive, and the circuit court has not yet ruled on Wall’s request for a declaratory judgment. Because this issue goes to the merits of the underlying action, because capacity is not a jurisdictional question, and because this Court has jurisdiction to consider only the narrow issue of attorney fees and costs assessed against Moultrie based on the contempt petitions filed and prosecuted by Wall, there is no need to consider this argument further.

      . Wall concedes on page 14 of his brief to this Court that the contempt petitions he filed were for the very purpose of obtaining "sanctions" against Moultrie; the attorney-fee award was by far the largest part of the "sanction" sought and awarded.

      . Perhaps the easiest illustration would be the setting of an attorney-fee award in an unduly small amount. This clearly would have the practical effect of "alter[ing],” “moot[ing],” or "[revisjing” an earlier contempt judgment in which the trial court announced that it would award "reasonable attorney fees” incurred by the petitioner in responding to the contemnor’s contumacious conduct. A similarly unexpectedly low setting of fees collateral to a judgment for breach of contract or in tort would not have the effect of "revising” or “altering” that judgment; execution on the conventional judgment to enforce injunctive orders or collect money damages could proceed unaffected and "lirarevised” by the subsequent setting of attorney fees.

      . See, e.g., In re Tetracycline Cases, 927 F.2d 411 (8th Cir. 1991).

      . As a result of its absence of from the record, this Court does not even have access to statements documenting the number of hours upon which the trial court based its award, despite the fact that time expended generally is viewed as the cornerstone of attorney-fee awards in cases of this nature.


author: MURDOCK, Justice.

text:
    Robert N. BARRETT and Tracy C. Barrett v. Carlos ROMAN d/b/a Carlos Roman Roofing and Bobby Beach d/b/a Just Brick It Masonry.
    1120352.
    Supreme Court of Alabama.
    Nov. 22, 2013.

      Melissa D. Endsley and Thomas S. McGrath of McGrath Law Firm, Huntsville, for appellants.
    Stephen A. Rowe and Aaron G. McLeod of Adams and Reese LLP, Birmingham, for Carlos Roman d/b/a Carlos Roman Roofing.
    J. Mark Debro and Jennifer M. Matthews of Grace, Matthews & Debro, LLC, Huntsville, for Bobby Beach d/b/a Just Brick It Masonry, for appellees.
   MURDOCK, Justice.

Robert N. Barrett and Tracy C. Barrett appeal from two summary judgments in favor of Carlos Roman d/b/a Carlos Roman Roofing (“Roman”) and Bobby Beach d/b/a Just Brick Masonry (“Beach”) on all of the Barretts’ claims against Roman and Beach. We dismiss the appeal.

Facts and Procedural History

In 2006, Jonathan Whitten and his family were looking to buy a new house in Huntsville. Whitten’s friend, Robert Fu-gate, convinced Whitten to build a new house in the Ledges subdivision, the subdivision in which Fugate lived and in which Fugate had constructed new houses through the company for which he worked. The Whittens purchased a lot in the Ledges, and Whitten applied for a building permit from the City of Huntsville’s Department of Building Inspection to construct a residence for his personal use. On July 11, 2006, Whitten obtained the building permit. Because Whitten had never undertaken a home-building project before, Fugate agreed as a friend to provide extensive help with the project. To that end, Whitten placed Fugate in charge of selecting the materials and the subcontractors for the project, although Whitten was to pay for all materials and was to pay the subcontractors directly.

Fugate hired Ronnie Smith d/b/a Ronnie Smith Construction (“Smith”) to frame the house. During the framing stage, Whitten decided that overseeing the project was taking up too much of his time and that he and his family could not afford to live in the upscale neighborhood. As a result, Whitten asked Fugate to become the full-time supervisor for constructing the house; they agreed that they would offer the house for sale when it was completed and that they would evenly split any profits from the sale of the house.

Fugate hired Beach to install the brick veneer to the house, and he hired Roman to install the roof. Whitten testified that he did not know the subcontractors, and the subcontractors testified that they had had no contact "with Whitten but that they had dealt with Fugate. There were no written contracts between Whitten and the subcontractors or between Fugate and the subcontractors. The subcontractors presented invoices to Fugate, who forwarded them to Whitten, who paid the invoices.

On April 17, 2007, Huntsville’s Department of Building Inspection issued a certificate of occupancy to Whitten for the residence at 174 Ledgeview Drive. The house was offered for sale, and on January 20, 2008, the Barretts entered into a sales contract with Whitten to purchase the property. On February 29, 2008, the Bar-retts closed on the purchase of the house for the price of $745,000. The sale generated $90,000 in profit, which Whitten and Fugate split so that each received $45,000.

After moving into the residence, the Barretts discovered multiple construction defects, including leaks, improper masonry work, bad flashing, missing brick ties, and other problems. The house allegedly had suffered severe water damage. On May 10, 2010, the Barretts filed an action in the Madison Circuit Court against Whitten and fictitiously named parties, alleging claims of suppression, negligence and wantonness, breaches of the implied warranties of habitability and workmanship, and a violation of the Deceptive Trade Practices Act. Whitten answered the complaint and asserted a counterclaim alleging breach of contract. The Barretts amended their complaint on July 9, 2010, to add a claim of breach of contract.

On August 31, 2010, Whitten filed a motion for leave to add as third-party defendants Smith, Beach, and Roman. Written alleged that each was a subcontractor on the project and that to the extent that he may be liable to the Barretts, the subcontractors were liable to him for indemnification, breach of express and implied warranties, and breach of duty. On September 2, 2010, the Barretts filed a response to Whitten’s motion in which they stated that they had no objection to the addition of the third-party defendants.

On October 14, 2010, Whitten filed a motion for a summary judgment or, in the alternative, to dismiss the Barretts’ claims against him for failure to arbitrate the claims. On January 11, 2011, Whitten filed a third-party complaint against Smith, Beach, and Roman, alleging the same claims he had mentioned in his motion to add the third-party defendants, i.e., common-law indemnification, breach of express and implied warranties, and breach of duty.

On May 30, 2012, Roman filed a motion for a summary judgment as to Whitten’s claims against him. On June 27, 2012, Beach likewise filed a motion for a summary judgment as to Whitten’s claims against him. The circuit court set all the summary-judgment motions to be heard on July 27, 2012.

On July 25, 2012, Whitten filed a motion to continue the summary-judgment hearing because of ongoing settlement discussions between Whitten and the Barretts. The Barretts likewise filed a motion to continue and to stay the hearing. On the same date, Whitten filed a response to the summary-judgment motions filed by Beach and Roman. Beach and Roman filed a joint motion to strike Whitten’s motion to continue the hearing.

On July 26, 2012, Beach and Roman filed a joint motion to strike certain portions of the affidavit Whitten had submitted in response to the summary-judgment motions of Beach and Roman. On the same date, the Barretts and Whitten reached a tentative settlement agreement. As part of the settlement, Whitten agreed to assign his claims against Smith, Roman, and Beach (“the subcontractors”) to the Barretts.

Later the same day, the Barretts filed a “second amended complaint” against Whit-ten, the subcontractors, and various fictitiously named parties in which they asserted claims of suppression, breach of the implied warranty of habitability, and breach of the Deceptive Trade Practices Act against Whitten, claims of negligence and wantonness, breach of the implied warranty of good workmanship, and breach of express and implied contract against all defendants, and common-law indemnification, breach of express and implied warranties, and breach of duty against the subcontractors.

On July 27, 2012, prior to the execution of final settlement documents between the Barretts and Whitten, the circuit court conducted the hearing on the summary-judgment motions. In the hearing, the circuit court denied the motions to continue the hearing, denied Whitten’s motion for a summary judgment or, in the alternative, to dismiss Beach and Roman’s joint motion to strike portions of Whitten’s affidavit, and entered a summary judgment for Beach and Roman on the claims asserted against them by Whitten.

Later the same day, the Barretts and Whitten filed a joint stipulation of dismissal of fewer than all the parties in which, pursuant to the settlement between the Barretts and Whitten, the Barretts requested dismissal of their claims against Written and requested that Whitten be dismissed as a plaintiff in his third-party action against the subcontractors because, pursuant to the settlement agreement, “Whitten has assigned all third-party claims against all third-party defendants, [Smith], [Roman,] and [Beach] to the Bar-retts and Whitten is no longer a real party in interest and has no standing to present said claims. Said claims have been asserted in Barretts’ Second Amended Complaint.” On August 2, 2012, the circuit court granted the joint stipulation for dismissal.

On August 3, 2012, Roman filed a motion for a summary judgment as to the claims against him stated in the Barretts’ second amended complaint. On August 6, 2012, Beach likewise filed a motion for a summary judgment as to the claims against him stated in the Barretts’ second amended complaint.

On August 15, 2012, the Barretts filed what they called an “amended second amended complaint.” This complaint substituted the subcontractors for fictitiously named defendants. The Barretts explain in their brief on appeal that “[t]he sole purpose of the [amended second amended complaint] was to clarify [that] the Bar-retts were substituting Beach and Roman as fictitious party defendants for the purposes of asserting direct tort claims and adding them as defendants for the purposes of asserting assigned claims.” Bar-retts’ brief, p. 6.

On October 12, 2012, Beach and Roman filed renewed motions for a summary judgment concerning the claims made against them in the Barretts’ amended second amended complaint. On October 30, 2012, the Barretts filed a “Motion to Reconsider Order Granting Third-Party Defendants’ Motions for Summary Judgment.” In that motion, the Barretts challenged the circuit court’s July 27, 2012, summary judgments in favor of Beach and Roman as to Whit-ten’s claims against them. On the following day, the Barretts filed their responses to the renewed motions for a summary judgment.

On November 2, 2013, the circuit court held a hearing on the renewed motions for a summary judgment filed by Beach and Roman. On November 21, 2012, the circuit court entered an order that provided, in pertinent part:

“1. The motion and renewed motion for summary judgment filed by the defendant, Carlos Roman d/b/a Roman’s Roofing [sic], are hereby granted. Accordingly, judgment is hereby entered in favor of the defendant, Carlos Roman d/b/a Roman’s Roofing, as to all claims asserted in the Complaint and any amendments thereto.
“2. The motion and renewed motion for summary judgment filed by the defendant, Bobby Beach d/b/a Just Brick It Masonry, are hereby granted. Accordingly, judgment is hereby entered in favor of the defendant, Bobby Beach d/b/a Just Brick It Masonry, as to all claims asserted in the complaint and any amendments thereto.
“3. Pursuant to Rule 54(b) of the Alabama Rules of Civil Procedure, it having been determined that there is no just reason for delay in the entry of a final judgment in favor of the defendants, Carlos Roman d/b/a Roman’s Roofing and Bobby Beach d/b/a Just Brick It Masonry, it is further ORDERED that the above judgments in favor of said defendants are final judgments.
“4. The motion to dismiss new claims asserted against Jonathan Whitten in the amended second amended complaint filed by the plaintiffs on September 26, 2012, is hereby granted.”

The Barretts appealed the circuit court’s order on December 21, 2012.

Analysis

Although neither party has raised the issue of the appropriateness of the circuit court’s Rule 54(b), Ala. R. Civ. P., certification of its November 21, 2012, summary-judgment order, this Court may consider that issue ex mero motu because the issue whether a judgment or order is sufficiently final to support an appeal is a jurisdictional one. See, e.g., Robinson v. Computer Servicenters, Inc., 360 So.2d 299, 302 (Ala.1978) (noting that “the trial court cannot confer appellate jurisdiction upon this [Cjourt through directing entry of judgment under Rule 54(b) if the judgment is not otherwise ‘final’ ”).

Rule 54(b) states, in pertinent part:

“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”

This Court has recently explained the standard for reviewing Rule 54(b) certifications:

“ ‘ “If a trial court certifies a judgment as final pursuant to Rule 54(b), an appeal will generally lie from that judgment.” Baugus v. City of Florence, 968 So.2d 529, 531 (Ala.2007).
“ ‘Although the order made the basis of the Rule 54(b) certification disposes of the entire claim against [the defendant in this case], thus satisfying the requirements of Rule 54(b) dealing with eligibility for consideration as a final judgment, there remains the additional requirement that there be no just reason for delay. A trial court’s conclusion to that effect is subject to review by this Court to determine whether the trial court exceeded its discretion in so concluding.’
“Centennial Assocs. v. Guthrie, 20 So.3d 1277, 1279 (Ala.2009). Reviewing the trial court’s finding in Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala.2006), that there was no just reason for delay, this Court explained that certifications under Rule 54(b) are disfavored:
“ ‘This Court looks with some disfavor upon certifications under Rule 54(b).
“ ‘ “It bears repeating, here, that ‘“[c]ertifications under Rule 54(b) should be entered only in exceptional cases and should not be entered routinely.” ’ State v. Lawhorn, 830 So.2d 720, 725 (Ala.2002) (quoting Baker v. Bennett, 644 So.2d 901, 903 (Ala.1994), citing in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373 (Ala.1987)). ‘ “ ‘Appellate review in a piecemeal fashion is not favored.’ ” ’ Goldome Credit Corp. [v. Player, 869 So.2d 1146, 1148 (Ala.Civ.App.2003) ] (quoting Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190, 192 (Ala.Civ.App.1999), quoting in turn Brown v. Whitaker Contracting Corp., 681 So.2d 226, 229 (Ala.Civ.App.1996)) (emphasis [omitted]).”
‘Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala.2004).’
“In considering whether a trial court has exceeded its discretion in determining that there is no just reason for delay in entering a judgment, this Court has considered whether ‘the issues in the claim being certified and a claim that will remain pending in the trial court “ ‘are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.”” Schlarb, 955 So.2d at 419-20 (quoting Clarke-Mobile Counties Gas Disk v. Prior Energy Corp., 834 So.2d 88, 95 (Ala.2002), quoting in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373,1374 (Ala.1987), and concluding that conversion and fraud claims were too intertwined with a pending breach-of-contract claim for Rule 54(b) certification when the propositions on which the appellant relied to support the claims were identical). See also Centennial Assocs., 20 So.3d at 1281 (concluding that claims against an attorney certified as final under Rule 54(b) were too closely intertwined with pending claims against other defendants when the pending claims required ‘resolution of the same issue’ as issue pending on appeal); and Howard v. Allstate Ins. Co., 9 So.3d 1213, 1215 (Ala.2008) (concluding that the judgments on the claims against certain of the defendants had been improperly certified as final under Rule 54(b) because the pending claims against the remaining defendants depended upon the resolution of common issues).”

Lighting Fair, Inc. v. Rosenberg, 63 So.3d 1256, 1263-64 (Ala.2010) (emphasis added).

With regard to the contract claims against the subcontractors assigned by Whitten to the Barretts, Beach and Roman contended that the Barretts could not maintain those claims because they were based on illegal contracts. Whitten never obtained a homebuilder’s license as required by § 34-14A-5, Ala.Code 1975. Beach and Roman contended that the “owner of property” exception to that requirement contained in § 34-14A-6(5), Ala.Code 1975, did not apply to Whitten because he offered the residence for sale rather than occupying it. Beach and Roman thus contended that Whitten — and by extension the Barretts — -were barred from bringing claims based on Whitten’s contracts with the subcontractors, because § 34-14A-14, Ala.Code 1975, expressly states that “[a] residential home builder, who does not have the license required, shall not bring or maintain any action to enforce the provisions of any contract for residential home building which he or she entered into in violation of this chapter.”

Concerning the Barretts’ direct claims of negligence and wantonness against Beach and Roman, which the Barretts also brought against Smith, Beach and Roman made two arguments. First, they contended that the claims were barred by the two-year statute of limitations of § 6-2-38(0, Ala.Code 1975. Beach and Roman argued that the Barretts were aware of the identities of the subcontractors within one month of closing on the property because Whitten gave them a list of the subcontractors. At the latest, Beach and Roman contended, the Barretts became aware of the subcontractors’ identities in June 2010 through discovery when Whit-ten specifically identified them. The Bar-retts testified that they noticed defects in the construction of the residence shortly after they moved into the house in 2008. The Barretts did not name Beach and Roman as defendants in a complaint until July 26, 2012.

In the circuit court, the Barretts countered the statute-of-limitations argument by contending that the relation-back doctrine applied to their tort claims because they substituted the subcontractors for fictitiously named defendants in them August 15, 2012, amended second amended complaint. Beach and Roman responded that the relation-back doctrine should not apply because, they say, the Barretts’ substitution was not timely. Beach and Roman contended that at the latest the Barretts were aware of the subcontractors’ potential culpability when Whitten filed his motion to add the subcontractors as third-party defendants on August 31, 2010, two years before the Barretts substituted the subcontractors for the fictitiously named defendants.

Second, Beach and Roman argued that the Barretts’ tort claims could not succeed because, they argue, the subcontractors did not owe a duty to the Barretts; their duty for performance was to Whitten. Beach and Roman contended that they worked on the residence at the behest of and for the benefit of Whitten, not the Barretts.

The contentions of Beach and Roman pertaining to the legality of the assigned contract claims, the timeliness of the direct tort claims, and substantive viability of the tort claims apply as much to Smith — the framer of the residence — as they do to Beach and Roman. Just like Beach and Roman, Smith was a subcontractor hired by Fugate under the auspices of Whitten to perform part of the construction on the residence. As with Beach and Roman, Smith was originally named as a third-party defendant by Whitten in his third-party complaint, which alleged that the subcontractors were actually responsible for any alleged defects in the construction of the residence. The Barretts brought the same claims against Smith that they alleged against Beach and Roman in their amended complaints. Likewise, the Bar-retts substituted Smith for a fictitiously named defendant in their amended second amended complaint just as they substituted Beach and Roman for fictitiously named defendants.

In short, the issues before us in this appeal require resolution of the same issues that are present in the claims pending in the circuit court against Smith. The November 21, 2012, judgment disposed of all of the Barretts’ claims against Beach and Roman, but it did not dispose of the Barretts’ claims against Smith. Thus, our consideration of the circuit court’s summary judgments in favor of Beach and Roman as final would mean that the intertwined claims against the subcontractors named as defendants in this action would be litigated in piecemeal fashion.

The piecemeal adjudication of the claims against the subcontractors poses an unreasonable risk of inconsistent results. Therefore, we must conclude that the circuit court exceeded its discretion in certifying the summary judgments in favor of Beach and Roman as final. Because “[a] nonfinal judgment will not support an appeal,” Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala.2004), the Barretts’ appeal must be dismissed.

APPEAL DISMISSED.

MOORE, C.J., and BOLIN, MAIN, and BRYAN, JJ., concur.

      . Although the Barretts mention only Beach and Roman in the above-quoted statement, their amended second amended complaint also substituted Smith for a fictitiously named defendant.

      . Section 34-14A-5(a), Ala.Code 1975, provides that "[a]ll residential home builders shall be required to be licensed by the Home Builders Licensure Board annually.”

      . Section § 34-14A-6(5), Ala.Code 1975, provides:
      "This chapter does not apply to:

      "(5) Owners of property when acting as their own contractor and providing all material supervision themselves, when building or improving one-family or two-family residences on such property for the occupancy or use of such owners and not offered for sale. "In any action brought under this chapter, proof of the sale or offering for sale of such structure by the owners of property, as provided in this subdivision, within one year after completion of same is presumptive evidence that the construction was undertaken for the purpose of sale.”

      . Neither the record on appeal nor the briefs of the parties provide an indication that the claims against Smith have been litigated to any degree in the circuit court despite the fact that the case-action summary shows that Smith has been provided copies of all the substantive filings and orders in this case.


author: BOLIN, Justice. MOORE, Chief Justice

text:
    Rhonda S. SEARS v. James F. HAMPTON, as guardian of Shirley Day, an incapacitated person, and conservator of the estate of Shirley Day.
    1120578.
    Supreme Court of Alabama.
    Nov. 22, 2013.

      J. Knox Argo, Montgomery, for appellant.
    James F. Hampton, Montgomery, for appellee.
   BOLIN, Justice.

This appeal involves the transfer of a guardianship and conservatorship pursuant to § 26-2B-302, Ala.Code 1975.

Facts and Procedural History

On July 14, 2010, the State of Kentucky entered an order finding that 74-year-old Shirley Day was in need of a guardian and a conservator. The Kentucky court appointed her adult daughter, Rhonda S. Sears, to serve in both capacities. Subsequently, Sears applied to the Kentucky court to transfer the guardianship and con-servatorship to Alabama, where she and Day were residing, and on January 11, 2012, the Kentucky court issued a provisional order transferring the guardianship and conservatorship.

On April 25, 2012, Sears, pursuant to the Alabama Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, § 26-2B-101 et seq., Ala.Code 1975 (“the Act”), applied to the Montgomery Probate Court for a provisional order accepting the transfer from Kentucky of the guardianship and conservatorship. In accordance with § 26-2B-302, Sears sought to continue as conservator and guardian. Pursuant to § 26-2B-802(b), Sears was to provide notice of the transfer to the persons required to have notice.

On May 8, 2012, the Montgomery Probate Court set a hearing for June 15, 2012, on Sears’s petition to accept the transfer. That same day, the probate judge appointed Valerie Cain as a guardian ad litem to represent Day in the transfer proceeding. On June 8, 2012, Cain requested a continuance of the hearing, which the probate court granted. Sears’s attorney also sought a continuance, which the probate court granted. On September 14, 2012, Cain submitted a report to the probate court questioning expenditures from Day’s estate and requesting a $4,110 guardian ad litem fee. Although nothing in the report indicated any inappropriate actions regarding Sears’s actions in caring for Day, Cain recommended that both the conserva-torship and the guardianship be transferred but that, rather than Sears, “the [Montgomery] county guardian and conservator be appointed.” On September 17, 2012, the probate court held a hearing, and on September 20, 2012, it granted the petition to transfer and appointed James F. Hampton as guardian of Day and conservator of Day’s estate. Day was removed from Sears’s home and placed in an apartment home. The probate court also approved Cain’s guardian ad litem fee to be paid from Day’s estate.

On October 30, 2012, Sears timely filed a notice of appeal from the probate court’s order in the Montgomery Circuit Court on the ground that the probate court’s order violated § 26-2B-302. On November 9, 2012, Sears filed a motion entitled “Motion For Injunctive Relief’ in which she asked the circuit court to enter an order in compliance with § 26-2B-302. On November 13, 2012, Hampton requested that the circuit court appoint Cain as Day’s guardian while he remain as conservator of her estate. On November 21, 2012, the circuit court held a hearing on Sears’s November 9, 2012, motion, at the end of which the court denied Sears’s requested relief and set the matter for further proceedings. On December 19, 2012, the circuit court appointed Cain as Day’s guardian. On January 9, 2013, the circuit court entered a written order denying Sears’s November 9, 2012, motion. On February 19, 2013, Sears filed a notice of appeal from the circuit court’s order with this Court. On August 1, 2013, this Court’s clerk’s office entered an order in accordance with Oliver v. Shealey, 67 So.3d 73 (Ala.2011). In Oliver, this Court held that Rule 3, Ala. R.App. P., applies to circuit courts and that if an appeal from the probate court is incorrectly filed in the circuit court, then the circuit court has to return the case to the probate court for that court to take the necessary clerical steps to docket the appeal and file the record and briefs in the appropriate appellate court. Because a circuit court’s appellate jurisdiction over an order of a probate court is confined to the seven circumstances enumerated in § 12-22-21, Ala.Code 1975, and an appeal from a motion to transfer under § 26-2B-302 is not one of those circumstances, Sears’s appeal from the probate court’s order to the circuit court was improper and has now, pursuant to Rule 3, Ala. R.App. P., been filed in this Court. Any orders issued by the circuit court are void. See Bernals, Inc. v. Kessler-Greystone, LLC, 70 So.3d 315, 319 (Ala.2011)(“When a circuit court lacks subject-matter jurisdiction, all orders and judgments entered in the case, except an order of dismissal, are void ab initio.”).

Standard of Review

“ ‘This court reviews de novo a trial court’s interpretation of a statute, because only a question of law is presented.’” Continental Nat’l Indem. Co. v. Fields, 926 So.2d 1033, 1034-35 (Ala.2005) (quoting Scott Bridge Co. v. Wright, 883 So.2d 1221,1223 (Ala.2003)).

“When interpreting a statute, a court must first give effect to the intent of the legislature. BP Exploration & Oil, Inc. v. Hopkins, 678 So.2d 1052 (Ala.1996). “When a court construes a statute, ‘[wjords used in [the] statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says.’ ” Ex parte Berryhill, 801 So.2d 7, 10 (Ala.2001) (quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)). The function of this Court is “ ‘to say what the law is, not to say what it should be.’ ” Ex parte Achenbach, 783 So.2d 4, 7 (Ala.2000) (quoting DeKalb Cnty. LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 276 (Ala.1998)).

Discussion

At the outset, the distinction should be made between a guardianship and a conservatorship. A guardianship concerns the control over the health, support, education, or maintenance of an incapacitated person, whereas a conservatorship is usually limited to control over the property and finances of a protected person. Here, the State of Kentucky appointed Sears as both guardian over the person and conservator of the property of Shirley Day.

In 2011, the legislature adopted the Act. Sections 26-2B-301 and -302, Ala. Code 1975, concerning transfers of existing guardianships and conservatorships from Alabama to other states and transfers of existing guardianships and conservator-ships from other states to Alabama, were meant to uniformly address problems with interstate transfers and to streamline the process in the best interests of the incapacitated adult or protected person and his or her resources. “Such a transfer is often appropriate when the incapacitated or protected person has moved or has been placed in a facility in another state, making it impossible for the original court to adequately monitor the proceeding.” Comments to § 26-2B-301. Section 26-2B-302 provides:

“(a) To confirm transfer of a guardianship or conservatorship transferred to this state under provisions similar to Section 26-2B-301, the guardian or conservator must petition the court in this state to accept the guardianship or con-servatorship. The petition must include the following:
“(1) a certified copy of the other state’s provisional order of transfer;
“(2) an inventory of the protected person’s estate as of the date of the petition including certified records of all bank accounts in the protected person’s estate as of the date of the petition;
“(3) proof of the conservator’s bond; and
“(4) any final accounting of he protected person’s estate which has been submitted in the prior jurisdiction. If no such accounting was required by the transferring court, the petitioner must prepare and submit an accounting prior to acceptance.
“(b) Notice of a petition under subsection (a) must be given to those persons that would be entitled to notice if the petition were a petition for the appointment of a guardian or issuance of a protective order in both the transferring state and this state. The notice must be given in the same manner as notice is required to be given in this state.
“(c) On the court’s own motion or on request of the guardian or conservator, the incapacitated or protected person, or other person required to be notified of the proceeding, the court shall hold a hearing on a petition filed pursuant to subsection (a).
“(d) The court shall issue a provisional order granting a petition filed under subsection (a) unless:
“(1) an objection is made and the objector establishes that transfer of the proceeding would be contrary to the interests of the incapacitated or protected person;
“(2) the guardian or conservator is ineligible for appointment in this state; or
“(3) the petitioner fails to comply with the provisions of subsection (a).
“(e) The court shall issue a final order accepting the proceeding and appointing the guardian or conservator as guardian or conservator in this state upon its receipt from the court from which the proceeding is being transferred of a final order issued under provisions similar to Section 26-2B-301 transferring the proceeding to this state and upon compliance with Section 26-2A-139.
“(f) Not later than 90 days after issuance of a final order accepting transfer of a guardianship or conservatorship, the court shall determine whether the guardianship or conservatorship needs to be modified to conform to the law of this state. Such modification may include, among other things, an inventory or an accounting pursuant to Sections 26-2A-146 and 26-2A-147.
“(g) In granting a petition under this section, the court shall recognize a guardianship or conservatorship order from the other state, including the determination of the incapacitated or protected person’s incapacity and the appointment of the guardian or conservator.
“(h) The denial by a court of this state of a petition to accept a guardianship or conservatorship transferred from another state does not affect the ability of the guardian or conservator to seek appointment as guardian or conservator in this state under Chapter 2A of this title, if the court has jurisdiction to make an appointment other than by reason of the provisional order of transfer.”

A transfer begins with the filing of a petition by the foreign guardian or conservator that includes a certified copy of the other state’s provisional order of transfer; an inventory of the protected person’s estate; proof of the conservator’s bond payable to the transferring court; and any final accounting submitted to the prior jurisdiction, § 26-2B-302(a), with the further proviso that if it has not been already submitted, the final accounting to the transferring court must be prepared and submitted prior to acceptance. Notice must be provided to persons who would be entitled to notice if the petition were a petition for an original appointment in both the transferring state and the state in which the transfer petition is filed. § 26-2B-302(b). A hearing on the petition to transfer is required only if requested by the guardian or conservator, the incapacitated or protected person, one of the persons required to be notified of the proceedings, or on the court’s own motion. The court in which the transfer petition has been filed shall issue a provisional order granting a petition unless an objection is made and the objector shows that transfer of the proceeding is contrary to the interests of the protected person; the guardian or conservator is not eligible for appointment in this State; or the petitioner fails to comply with the provisions of § 26-2B-302(a).

The final steps in a transfer petition to which there is no objection are largely ministerial. Section 26-2B-302(e) provides that the court in which the petition has been filed shall issue a final order accepting the guardian or conservator as guardian and conservator in this State upon receiving the final order from the transferring court and upon the furnishing of a proper and sufficient bond to the probate judge in this State in accordance with § 26-2A-139. The transferring court will not issue a final order dismissing the case until it receives a copy of the provisional order from the accepting court. § 26-2B-302(e), referring to § 26-2A-301(f). The Act is designed to avoid gaps in coverage when there is a transfer petition. Because guardianship and conserva-torship proceedings may differ from state to state, § 26-2B-302(f) allows 90 days for the court accepting the transfer to determine whether the guardianship or conser-vatorship needs to be modified to conform to the laws of the state accepting the transfer. Such modification may include an updated inventory or an accelerated accounting pursuant to §§ 26-2A-146 and -147, Ala.Code 1975. Section 26-2B-302(g) provides that in granting the transfer petition the court shall recognize the guardianship or conservatorship of the transferring state, including the determination of the protected person’s incapacity and the appointment of the guardian or conservator. Last, § 26-2B-302(h) provides that the denial of a transfer petition will not affect the ability of the guardian or conservator to seek appointment in this State as an original proceeding under Chapter 2A the Uniform Guardianship and Protective Proceedings Act.

Sections 26-2B-301 and -302 make it possible to transfer a guardianship or conservatorship between states without re-litigating the issue of incapacity or the transferring state’s appointment of the guardian or conservator. Although §§ 26-2B-301 and -302 also make it possible to transfer a proceeding without relitigating the appropriateness of the choice of guardian or conservator, they also provide for an objection to the issuance of a provisional order if the transfer is not in the best interest or is contrary to the interests of the protected person or the guardian or conservator is ineligible for appointment in this State. The inventory and final accounting required to be filed under the Act, along with the required notice to family members, are to ensure the appropriateness of the transfer. If anyone objects, then the court must determine whether the transfer would be contrary to the protected person’s interest. Here, the probate court appointed a guardian ad litem for the protected person immediately upon receipt of the transfer petition. We note that § 26-2B-301(g) provides for a guardian ad litem to be appointed by the court in cases to be transferred from this state to another state, although there is no similar provision for such appointment in § 26-2B-302 regarding eases to be transferred from another state to this state, as is the matter before us. However, we further note that § 26-2A-52, Ala.Code 1975, allows the probate court to appoint a guardian ad litem “[a]t any time in a proceeding.”

In the present case, the probate court failed to comply with § 26-2B-302. The probate court entered a provisional order granting the transfer but then proceeded to appoint a different conservator and guardian than the one appointed in Kentucky, even though no final guardianship or conservatorship had been created in this State. The letters of guardianship and conservatorship granted to Sears by the State of Kentucky were still in force and were valid, which meant that different appointed caretakers and fiduciaries for Day had conflicting and competing authority. Such a scenario can have grave implications, because law enforcement would be unable to determine which letters of guardianship were correct for the protected person’s residence, and financial institutions would not be able to determine which letters of conservatorship to honor for financial transactions.

It appears that one of Day’s adult daughters disagreed with Sears’s expenditures from Day’s estate. Under § 26-2B-302(d)(1), the daughter could have objected and the probate court could then have held a hearing to determine whether the transfer to Alabama of Sears’s Kentucky guardianship and conservatorship would be in Day’s best interests. Here, the probate court would have erred by appointing any new guardian and conservator, most especially a different guardian and conservator than the one previously appointed by the transferring court, when the only matter properly before the court was the issue whether a provisional order of transfer would be approved. This was clearly beyond the scope of the statute, and the probate court acted without authority in doing so. As a result of the erroneous appointment of the Montgomery County guardian and conservator, Day was subjected to removal from Sears’s home and Day’s estate was subjected to unnecessary fees in this jurisdiction when the Act safeguards the protected person and his or her resources from the transfer of an inappropriate guardianship or conservatorship when it is not in the best interests of the protected person.

The General Uniform Comment to Article 3 states, in part:

“Because guardianship and conserva-torship law and practice will likely differ between the two states, the court in the accepting state must within 90 days after issuance of a final order determine whether the guardianship or conserva-torship needs to be modified to conform to the law of the accepting state. Section 302(f). The number ‘90’ is placed in brackets to encourage states to coordinate this time limit with the time limits for other required filings such as guardianship or conservatorship plans. This initial period in the accepting state is also an appropriate time to change the ■ guardian or conservator in the accepting state. The drafters specifically did not try to design the procedures in Article 3 for the difficult problems that can arise in connection with a transfer when a guardian or conservator is ineligible to act in the second state, a circumstance that can occur when a financial institution is acting as conservator or a governmental agency is acting as guardian. Rather, the procedures in Article 3 are designed for the typical case where the guardian or conservator is legally eligible to act in the second state. Should that particular guardian or conservator not be the best person to act in the accepting state, a change of guardian or conservator can be initiated once the transfer has been secured.”

(Emphasis added.) The appropriateness of Sears to continue to serve as her mother’s conservator or guardian, or whether she had improperly expended estate assets, would have been relevant only regarding the sole issue before the court— whether a provisional order of transfer would be granted. Any changes to the guardianship or conservatorship by the receiving court could be made only after a final order of acceptance had been entered.

Further, because we cannot ascertain whether the probate court’s grant of the transfer petition was coupled with, or, put another way, dependent upon its erroneous appointment of a new guardian and conservator, we are compelled to reverse both aspects of the court’s order. Accordingly, we reverse the judgment of the probate court and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

STUART, PARKER, MURDOCK, SHAW, MAIN, WISE, and BRYAN, JJ„ concur.

MOORE, C.J., concurs specially.

MOORE, Chief Justice

(concurring specially).

I agree that the Alabama Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, § 26-2B-301 et seq., Ala. Code 1975 (“the Act”), does not permit a probate court to change a guardian or conservator until it first issues a final order accepting transfer of the case from a foreign jurisdiction in response to a final order from that court. See § 26-2B-302(f), Ala.Code 1975. The policy of the Act is to preserve the guardianship intact during its transfer from one state to another, thus “eliminating any ‘black-out’ period between the termination of the guardianship in one state and its re-creation in another.” Stephen Rauls, Family Law— Guardianship — The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act: A Uniform Solution to an Arkansas Problem, 33 U. Ark. Little Rock L. Rev. 75, 83 (2010). The Act accordingly prevents relitigation of the incapacity or appointment issues in the accepting state until the transfer is complete. “In granting a petition under this section, the court shall recognize a guardianship or conservatorship order from the other state, including the determination of the incapacitated or protected person’s incapacity and the appointment of the guardian or conservator.” § 26-2B-302(g), Ala. Code 1975 (emphasis added). See Hugh M. Lee, Alabama’s New Uniform Guardianship and Protective Proceedings Jurisdiction Act: Providing Clear Guidance for the Management and Resolution of Interstate Gtiardianship and Conservatorship Disputes, 71 Ala. Lawyer 388, 392 (2010) (“In accepting the transfer of the case, the receiving court must defer to the transferring court’s finding of incapacity and choice of the guardian or conservator.”).

Because in this case acceptance of the transfer was only provisional until ratified by a final order from the Kentucky court, the Alabama probate court acted prematurely when it appointed a new guardian and conservator.

      . When the Kentucky court issued its order, both Day and Sears were residents of Kentucky.

      . Section 26-2B-302(b) requires that the notice of the transfer-petition request be provided to those persons entitled to notice if the petition were a petition for the appointment of a guardian or the issuance of a protective order in both the transferring state and in Alabama. Sections 26-2A-103 and 26-2A-134, Ala.Code 1975, set out the notice required for a guardianship and a conservator-ship or other protective order. A protective order is defined under the Act as the appointment of a conservator or the issuance of another order related to management of an adult's property. The Alabama Comment to the Act states:
      "Alabama retained the definition of ‘protective order’ contained in the Uniform Act in order to insure that orders related to conservatorship issued by other states would be subject to this Act regardless of whether the issuing state uses the term ‘protective order.’ The definition was not intended to extend the jurisdiction of this Act beyond protective orders issued in the context of a conservatorship proceeding. The term 'protective order’ is not intended to encompass orders entered under the Protection from Abuse Act or the Adult Protective Services Act. Rather, this term is narrowly used to refer to orders entered for the protection of one deemed incapacitated to handle their own affairs pursuant to the Alabama Uniform Guardianship and Protective Proceedings Act, Ala.Code § 26-2A-1 et seq. (1975) or pursuant to another state’s guardianship and conservatorship statutes.”
      Those required to be notified under Alabama law are: the incapacitated person; his or her spouse and adult children; any person serving as guardian or conservator, or one who has care and custody of the person; if there is no spouse or adult children, the nearest adult relative; and any other person directed by the court. Notice by publication may also be required. See § 26-2A-134, Ala.Code 1975.

      . We recognize that there are some counties with local acts addressing appeals from probate court. See, e.g., Act No. 91-13, Ala. Acts 1991 (Mobile County), and Act No. 1144, Ala. Acts 1971 (Jefferson County). Because neither of these counties are involved in this case, we will not address any possible conflict between the local acts and § 12-22-21. We also note that Shelby County and Pickens County have constitutional amendments regarding the exercise of equity jurisdiction in the probate courts in those counties when the probate judge is learned in the law. See Amendment No. 758 (Shelby)(now § 4, Local Amendments, Shelby County, Off Recomp.) and Amendment No. 836 (Pickens) (now § 6.10, Local Amendments, Pickens County, Off. Recomp.). However, neither of these amendments addresses appeals from those probate courts.

      . The statutory order of proceedings is as follows: (1) The transferring court issues a provisional order of transfer; (2) the accepting court issues a provisional order of acceptance; (3) the transferring court issues a final order of transfer; (4) the accepting court issues a final order of acceptance. See Lee, Providing Clear Guidance, 71 Ala. Lawyer at 392 ("[T]he receiving court must accept the transfer before the transferring court may issue a final order transferring the case.”).