author: STUART, Justice.

text:
    Eliot HOFF v. Anita Kidd GOYER.
    1111078.
    Supreme Court of Alabama.
    Aug. 17, 2012.
    Rehearing Denied Oct. 12, 2012.

      Eliot Hoff, pro se.
    James P. Naftel II of Maynard, Cooper & Gale, P.C., Birmingham, for appellee.
   STUART, Justice.

Eliot Hoff (“Hoff’) appeals the order of the Jefferson Circuit Court (“the circuit court”) remanding the administration of the conservatorship of his grandmother, Susan Bibb Kidd, to the Jefferson Probate Court (“the probate court”). We affirm.

I.

On August 30, 2006, the probate court adjudged Kidd to be an incapacitated person and appointed Mark Goolsby as conservator of her estate. The estate of Susan Bibb Kidd, a protected person, was thereby assigned probate-court case no. 192761. Sometime in August 2008, Gools-by sold some personal property in Kidd’s estate to Anita Kidd Goyer, one of Kidd’s three daughters. When another of Kidd’s daughters, Susan Louis Hoff, and her son Hoff (hereinafter referred to collectively as “the Hoffs”) found out about the sale, they filed an objection in the probate court. Meanwhile, on September 29, 2009, Kidd died.

On February 21, 2011, the probate court issued an order that, among other things, approved the August 2008 sale of Kidd’s personal property to Goyer. The Hoffs promptly moved the probate court to reconsider. An initial hearing on their motion was held on June 8, 2011; however, the matter was subsequently continued and another hearing scheduled for September 15, 2011.

On June 24, 2011, Goolsby petitioned the probate court to be appointed administrator of Kidd’s estate because he could not conduct business as conservator after her death. The Hoffs thereafter also filed a motion to continue the hearing scheduled for September 15, 2011. On August 22, 2011, the probate court ruled on those motions, setting the hearing on the Hoffs’ motion to reconsider for October 27, 2011, and denying Goolsby’s motion to be appointed administrator of Kidd’s estate. Instead, the probate court, on its own motion, appointed attorney Elizabeth W. McElroy, the general administrator for Jefferson County, as administrator of Kidd’s estate. The estate of Susan Bibb Kidd, deceased, was thereby opened and assigned case no. 212938 in the probate court.

On October 20, 2011 — one week before the probate court was scheduled to conduct a hearing on the Hoffs’ motion to reconsider its February 21 ruling approving Goolsby’s sale to Goyer of certain personal property belonging to Kidd — the Hoffs petitioned the circuit court to remove case no. 192761, the conservatorship proceeding, from the probate court. That petition stated in pertinent part:

“Comes now, Eliot Hoff and Susan Hoff, pursuant to Ala.Code [1975,] § 12-11-41, and petition[] the Court for an Order removing the administration of the Estate of Susan Bibb Kidd, a protected person, now deceased, from the Probate Court of Jefferson County, Alabama to the Circuit Court of Jefferson County, Alabama, with the attached will.
“As grounds for said petition, Eliot Hoff and Susan Hoff, state the following:
“(1) In case no. 192761, in the matter of the Estate of Susan Bibb Kidd, a protected person, now deceased:
“(a) No final settlement of the estate has been made and no steps have been taken for a settlement in the probate court.
“(b) In the opinion of your petitioners the estate can be better administrated in circuit court than in probate court.
“(c)' This case is removable from the Probate Court of Jefferson County, Alabama pursuant to ... § 12-11-41[, Ala.Code 1975,] upon this petition because ... Eliot Hoff and Susan Hoff, are the respective daughter and grandson, heirs and legatees of said Susan Bibb Kidd, and as such have an interest in the administration of said estate.
“For the foregoing reasons, petitioners pray that case no. 192761, in the Probate Court of Jefferson County, Alabama be removed to this court pursuant to ... § 12-11-41.”

On October 25, 2011, the circuit court entered an order removing the conservator-ship proceeding from the probate court.

The judge initially assigned to preside over this case in the circuit court subsequently recused himself, and the judge thereafter assigned to the case scheduled an initial status conference for February 3, 2012. On February 2, 2012, Goyer moved the circuit court to remand the conserva-torship proceeding to the probate court, arguing that removal of a conservatorship proceeding from a probate court to a circuit court in Jefferson County was governed by § 26-2-3, Ala.Code 1975, not by § 12-11-41, AIa.Code 1975, as the Hoffs had alleged in their petition seeking removal and that the Hoffs had not established that they were entitled to removal under § 26-2-3. At the status conference held the next day, the circuit court set a hearing on Goyer’s motion to remand for February 23, 2012.

On February 16, 2012, the Hoffs filed their response opposing Goyer’s motion and seeking sanctions against her and her attorney pursuant to the Alabama Litigation Accountability Act, § 12-19-270 et seq., Ala.Code 1975 (“the ALAA”), because, the Hoffs alleged, the motion to remand lacked any legal or factual basis. The circuit court considered all pending motions at the hearing held February 23, 2012, and, on March 2, 2012, entered an order remanding the conservatorship proceeding to the probate court and denying the Hoffs’ motion for sanctions. On March 20, 2012, Hoff filed his notice of appeal.

II.

Hoff argues that the circuit court erred both in remanding the conservator-ship proceeding to the probate court and in denying his motion for sanctions. Hoffs argument that the circuit court erred in remanding the conservatorship proceeding presents, essentially, a question of statutory interpretation; no relevant facts are in dispute, and we must determine which of the cited statutes— § 12-11-41 or § 26-2-3—governs the removal of this conservatorship proceeding from the probate court to the circuit court. Accordingly, we review the circuit court’s decision pursuant to the de novo standard of review. See Pitts v. Gangi, 896 So.2d 433, 434 (Ala.2004) (“We review questions of statutory construction and interpretation de novo, giving no deference to the trial court’s conclusions. Greene v. Thompson, 554 So.2d 376 (Ala.1989).”).

We set forth the standard of review applicable to Hoffs argument that the circuit court erred in denying his motion for sanctions pursuant to the ALAA as follows in Ex parte Loma Alta Property Owners Ass’n, Inc., 52 So.3d 518, 523-24 (Ala.2010):

“If a court denies a claim for attorney fees under the ALAA after holding a hearing on that claim, and the party seeking attorney fees appeals that denial arguing that the subject action, claim, defense, or appeal was frivolous, groundless in fact, vexatious, or interposed for an improper purpose, the appellate standard of review is equivalent to the ore tenus standard of review.... If a court denies a claim for attorney fees under the ALAA after holding a hearing on that claim, and the party seeking attorney fees appeals that denial arguing that the subject action, claim, defense, or appeal was groundless in law, the appellate standard of review is de novo....”

(Emphasis added; footnote omitted.)

III.

We first consider Hoffs argument that the circuit court erred in remanding this conservatorship proceeding to the probate court. Citing Rules 12 and 59, Ala. R. Civ. P., Hoff first makes the procedural argument that Goyer’s motion to remand was untimely. However, Goyer’s motion to remand was not made pursuant to Rule 12 or Rule 59, and the time limits set forth in those rules do not apply to a motion to remand such as Goyer’s. Moreover, we note that in her motion to remand Goyer argued that the Hoffs lacked standing to seek the removal of the conservatorship proceeding in the first place, and this Court has stated that issues of standing may not be waived and may be raised at any time in a proceeding. State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999). Hoffs argument that Goyer’s motion to remand was untimely is without merit.

We therefore turn to the gravamen of Hoffs argument on appeal—that it is undisputed both that Kidd was deceased at the time Hoff and his mother filed their petition to remove the conservatorship proceeding to the circuit court and that an administrator had been appointed over Kidd’s estate; accordingly, he argues, § 12 — 11-41 was the only mechanism by which to remove the conservatorship proceeding to the circuit court because § 12-11-41 contemplates the removal of a deceased person’s estate, while § 26-2-3 contemplates the removal of a living person’s estate. On a literal level, Hoffs argument is partially correct— § 12-11^41 does concern the removal of the administration of an estate opened by a probate court after a person dies, and § 26-2-3 does concern the removal of the administration of an estate opened for a living, though incapacitated, person. However, because these statutes contemplate different kinds of estates — a decedent’s estate as opposed to a conservatorship or guardianship — Hoffs argument ultimately fails.

The Hoffs’ petition for removal explicitly stated that it was being made pursuant to § 12-11-41, which provides as follows:

“The administration of any estate may be removed from the probate court to the circuit court at any time before a final settlement thereof, by any heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed of any such estate, without assigning any special equity; and an order of removal must be made by the court, upon the filing of a sworn petition by any such heir, devisee, legatee, dis-tributee, executor, administrator or administrator with the will annexed of any such estate, reciting that the petitioner is such heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed and that, in the opinion of the petitioner, such estate can be better administered in the circuit court than in the probate court.”

Hoff and his mother further attempted to fulfill the terms of the statute by attaching Kidd’s will to their petition, declaring themselves to be Kidd’s heirs and legatees, and stating their opinion that Kidd’s estate could better be administered in the circuit court than in the probate court. This petition would accordingly have been sufficient to require the removal to the circuit court of proceedings related to the administration of a decedent’s estate, that is, the case opened by a probate court after an individual dies. The probate court had, in fact, opened such an estate on August 22, 2011, when it appointed McElroy as administrator of Kidd’s estate and assigned the administration of her estate case no. 212938. However, Hoff and his mother did not petition for the removal of case no. 212938 to the circuit court; rather, they filed their petition in case no. 192761 and explicitly stated therein that they sought the removal of case no. 192761 — the case opened when Kidd was initially found to be an incapacitated person and a conservator was appointed for her estate.

Because case no. 192761 involves a conservatorship in Jefferson County, a “county where the judge of probate is required to be learned in the law,” its removal is governed by § 26-2-3, which provides, in pertinent part:

“(a) In any county where the judge of probate is required to be learned in the law, the administration or conduct of any guardianship or conservatorship of a minor or incapacitated person may be removed from the probate court to the circuit court pursuant to Section 26-2-2 at any time before a proceeding for final settlement thereof is commenced in probate court by the guardian or conservator of the guardianship or conservator-ship or guardian ad litem or next friend of a ward or anyone entitled to support out of the estate of the ward without assigning any special equity. The circuit court shall remand the administration of a guardianship or conservator-ship transferred pursuant to this section to the probate court if the circuit court finds that the removal was sought for the purpose of improper delay or did not comply with applicable law.”

Despite the clear terms of § 26-2-3 indicating that it applies to “the administration or conduct of any guardianship or conser-vatorship,” Hoff nevertheless argues that § 12-11-41 applies in this case because Kidd was deceased when he and his mother filed the petition for removal of the conservatorship proceeding. Although Hoff refutes this characterization of his argument, it appears to be his position that the proceeding governing the administration of the conservatorship (case no. 192761) automatically expanded to include the administration of Kidd’s post-death estate either upon her death or upon the appointment of McElroy as administrator of her post-death estate. The circuit court responded to this argument in its order remanding the case to the probate court as follows:

“Eliot Hoff and Susan Louis Hoff assert that because the protected person, Susan Bibb Kidd, is now deceased, Title 26 of the Alabama Code [1975], including Alabama Code [1975,] § 26-2-3, does not apply to this matter, and instead the only applicable statute is Alabama Code [1975,] § 12-11-41, which pertains to decedents’ estate. Although it is undisputed that Susan Bibb Kidd died on or about September 29, 2009, this proceeding relates to her conservatorship estate — the Estate of Susan Bibb Kidd, a protected person, which was administered in the Probate Court of Jefferson County as case number 192761 and not to a decedent’s estate administration. The court notes that there is a separate decedent’s estate administration which is being administered concurrently with the conservatorship estate: on August 22, 2011, the Probate Court of Jefferson County appointed Elizabeth W. McEl-roy, Esq., to serve as administrator with the will annexed of the Estate of Susan Bibb Kidd, deceased. The decedent’s estate administration is a separate proceeding, case number 212938 in the Probate Court of Jefferson County. The Hoffs contend that under Alabama law, a conservatorship or guardianship cannot exist concurrently with a decedent’s estate for the same person. This is simply a misunderstanding of Alabama law. While the authority of a conservator may indeed cease upon the death of the protected person or ward, a conser-vatorship estate remains open until final settlement thereof. See Alabama Code [1975,] § 26-5-7. The administration of the decedent’s estate of the formerly protected person may be commenced separately, and, indeed, Alabama Code [1975,] § 26-5-12, contemplates that the personal representative of a deceased ward’s decedent’s estate may be involved as a consenting party in the settlement of a deceased ward’s conserva-torship estate. There is no provision in the Alabama Code requiring final settlement of a conservatorship prior to commencement of a decedent’s estate administration.”

We agree with the rationale of the circuit court. The administration of a protected person’s estate is not closed until there is a final settlement as described in § 26-5-1 et seq., Ala.Code 1975; it does not automatically terminate upon the protected person’s death or even when an administrator is appointed for that person’s post-death estate. See, e.g., Smith v. Smith, 248 Ala. 49, 51, 26 So.2d 571, 571 (1946) (“The ward is dead and it only remains for the guardian to undertake his statutory duty of making a final settlement of his guardianship.”). Moreover, § 26-5-12 expressly contemplates the simultaneous existence of a conservator — who would administer a protected person’s estate while the person was living — and an administrator or personal representative — who would administer that same protected person’s post-death estate following the representative’s appointment by the probate court after the protected person’s death.

We further reject Hoffs argument that the administration of a post-death estate must be conducted within the confines of a preexisting case involving a conservator-ship if, in fact, such a conservatorship exists, because, he argues, the administration of an estate is “a single and continuous proceeding” and there cannot be two cases involving the estate of the same person. Hoff cites Allen v. Estate of Juddine, 60 So.3d 852, 855 (Ala.2010), for this proposition. Hoffs reliance upon Allen, however, is misplaced. In Allen, this Court reversed a circuit court’s judgment holding that it could preside over certain aspects of the administration of a post-death estate while a probate court was presiding over other matters related to the same post-death estate, including the probate of the decedent’s will, stating:

“In its March 11, 2010, order, the circuit court stated that its administration of the estate and the probate of the will were ‘two totally different matters,’ noting the exclusive authority of the probate court to initiate the administration of an estate, citing Ex parte Smith, 619 So.2d 1374, 1376 (Ala.1993) (‘The circuit court cannot initiate the administration of an estate, because the initiation of administration is a matter exclusively in the jurisdiction of the probate court.’). However, this Court has explained:
“ ‘[T]he administration and settlement of a decedent’s estate in equity is a single and continuous proceeding; and when the administration of an estate is once removed from the probate court into a court of equity, its jurisdiction becomes exclusive and efficient, and the court must operate to a final settlement governed by its own procedure.’
“Hinson v. Naugher, 207 Ala. 592, 593, 93 So. 560, 561 (1922) (emphasis added). See also Ex parte Farley, 981 So.2d 392, 396 (Ala.2007) (‘ “[T]he administration and settlement of a decedent’s estate is a single and continuous proceeding throughout, and there can be, no splitting up of such administration, any more than any other cause of action ....’” (quoting McKeithen v. Rich, 204 Ala. 588, 589, 86 So. 377, 378 (1920)(emphasis added)))....
“The administration of the estate was initiated by the probate court when it granted [the administrator] letters of administration. See Smith, 619 So.2d at 1376 (‘[T]he mere filing of a petition for the administration of an estate does not in itself begin the administration; rather, the probate court must act upon the petition and thereby actívate the proceedings, which may thereafter be subject to removal to the circuit court.’). The administration of the estate was properly removed to the circuit court on December 28, 2009. The administration of the estate was a single and continuous proceeding over which the circuit court had exclusive jurisdiction, and the probate of [the decedent’s] will could not be split from the action. See Hinson and Farley, supra. The circuit court, therefore, erred in refusing to probate [the decedent’s] will.”

60 So.3d at 855-56. Hoffs reliance upon Allen and the cases cited therein is misplaced because those cases clearly concern only post-death estates; they do not involve living estates like conservatorships. There is no dispute but that the administration of a post-death estate is a single and continuous proceeding that cannot be split between separate courts; however, the present appeal involves not just a post-death estate, but a post-death estate and a conservatorship. The administration of these two estates involves different proceedings governed by different sections of the Alabama Code, and the probate court organized those proceedings into two separate cases. Accordingly, the remand of the conservatorship proceeding created no conflict with Allen.

Hoff next argues that, even if he should have sought removal under § 26-2-3 instead of § 12-11-41, his petition for removal should nevertheless have been granted because, he argues, his petition met the requirements of that statute as well. We disagree. Section 26-2-3 permits a “guardian or conservator ... or guardian ad litem or next friend ... or anyone entitled to support out of the estate of [the protected person]” to file a petition to remove the conservatorship proceeding for that protected person from the probate court to the circuit court. It is undisputed that Hoff was not Kidd’s guardian, conservator, or guardian ad li-tem; nor is there any allegation that he was entitled to support out of her estate while she was alive.

However, even though Hoff did not allege himself to be Kidd’s next friend in his petition for removal, he argues that his blood relationship to her qualifies him as a next friend with standing to seek removal under §§ 26-2-2 and 26-2-3. Our case-law, however, refutes that argument. See McNairy v. McNairy, 416 So.2d 735, 736 (Ala.1982) (holding that petition for removal filed by a protected person’s sister did not meet the requirements of § 26-2-2 in part because the petition “did not recite in what capacity the [sister] was acting”), and Smith, 248 Ala. at 51, 26 So.2d at 571-72 (holding that the next of kin of a deceased protected person did not have the absolute right to remove the administration of the guardianship proceeding from the probate court to the circuit court because the predecessor statute to § 26-2-2 did not include next of kin in the list of persons granted that absolute right). Hoffs petition for removal did not meet the requirements of §§ 26-2-2 and 26-2-3 and was therefore insufficient to merit the removal sought therein.

Hoffs attempt to remove the conserva-torship proceeding pursuant to § 12-11-41 — which applies to post-death estates— was improper because, § 26-2-3, not § 12 — 11—41, was the governing statute. Accordingly, even though the circuit court initially granted the removal petition, it subsequently remedied its error by remanding the conservatorship proceeding to the probate court because the initial removal “did not comply with applicable law.” § 26-2-3. Our conclusion that the circuit court properly granted Goyer’s motion to remand the conservatorship proceeding to the probate court requires us also to conclude that the circuit court did not err in denying Hoffs motion for sane-tions against Goyer and her attorney 'based on the filing of the motion for remand; as explained supra, that motion was supported by both the law and the facts. Further discussion of Hoffs ALAA argument is accordingly unnecessary.

IV.

Hoff appealed the order entered by the circuit court remanding the administration of the conservatorship of his grandmother to the probate court, arguing that he had properly petitioned for removal of the case pursuant to § 12-11-41. However, because the removal of the conservatorship proceeding in this case is governed by § 26-2-3, not § 12-11^41, and because Hoff did not have standing to seek removal under § 26-2-8, the circuit court’s order of remand was properly entered and is, accordingly, affirmed.

AFFIRMED.

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

      . Documents in the record indicate that Mary Bibb Miller, one of Kidd’s three daughters, was at some point appointed her guardian and that attorney Robert W. Gwin served for some time as guardian ad litem; however, the dates and details of those appointments are not found in the record. See Comments on § 26-2A-1, Ala.Code 1975 ("[T]his chapter recognizes two fiduciary capacities — i.e., a 'guardian' who is ‘of the person’ and analogous to the role of the parent, and a ‘conservator’ who is ‘of the property' and more closely analogous to the role of a trustee. Historically, in many states, including Alabama, the term ‘guardian’ covered both of these capacities and for that reason has been a source of confusion not only as to the capacity of the fiduciary, but also as to his or her duties and responsibilities. Because this chapter distinguishes between the two capacities, the duties and responsibilities may be separated by two appointments or one person may serve in both capacities (and with both titles) as the circumstances seem to dictate.”).

      . The Hoffs had been represented by attorney William F. Prosch, Jr., in connection with their motion asking the probate court to reconsider its February 21, 2011, order; however, they filed their petition for removal and have engaged in all subsequent proceedings including this appeal pro se. Prosch, in fact, filed a response in the circuit court stating that he has never advised the Hoffs in connection with the petition for removal and did not even become aware of it until after it had already been ruled upon.

      . This appeal was originally filed in the Court of Civil Appeals; it was transferred to this Court on May 4, 2012.

      . A transcript of the February 23, 2012, hearing is not in the record; however, Hoff appears to argue for the first time in his reply brief that there is no evidence indicating that case no. 212938 actually exists. Regardless of whether this issue was raised in the circuit court, however, "we will not consider an issue not raised in an appellant’s initial brief, but raised only in its reply brief.” Brown v. St. Vincent's Hosp., 899 So.2d 227, 234 (Ala.2004).

      . Section 26-2-2, Ala.Code 1975, provides that an order of removal will be issued
      "upon the filing of a sworn petition by any such guardian or conservator or guardian ad litem or next friend for the ward or such person entitled to support out of the estate of such ward, reciting in what capacity the petitioner acts and that in the opinion of the petitioner such guardianship or conser-vatorship can be better administered in the circuit court than in the probate court.”

      . We also decline to address in any detail Hoff’s argument that the circuit court ruled against him on the basis of his status as a pro se litigant. The circuit court entered a six-page order explaining the law supporting its decision; there is nothing in that order or elsewhere in the record that would support this argument.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Howard ROSS v. CITY OF HUNTSVILLE.
    2110471.
    Court of Civil Appeals of Alabama.
    June 15, 2012.
    Rehearing Denied Aug. 31, 2012.
    Certiorari Denied Oct. 12, 2012 Alabama Supreme Court 1111595.
    Howard S. Ross, pro se.
    Jeffrey K. Grimes, asst, city atty., Huntsville, for appellee.'
   MOORE, Judge.

Howard Ross appeals from a summary judgment entered by the Madison Circuit Court (“the trial court”) in favor of the City of Huntsville (“the City”). We affirm.

On August 20, 2010, Ross filed a complaint “for trespassing and restitution for damages due to the improper demolition by [the City] of a residential structure located on real property owned by Howard Ross and the improper addition of a demolition lien to the real estate taxes owed.” Ross alleged that the City failed to give him proper notice of the demolition of the structure. The City answered the complaint on October 11, 2010. On August 23, 2011, the City filed a motion for a summary judgment. In its summary-judgment motion, the City argued that it had complied with all the statutory notice requirements for demolition of the structure, see Ala.Code 1975, § 11-40-1 et seq., and that the City had had a lawful right to demolish the structure. The City attached to its summary-judgment motion, among other evidentiary submissions, the affidavit of Cheri Cunningham, who is employed as a “housing specialist II” in the City’s Office of Community Development and is “the custodian of the records relating to public nuisance abatement.” In her affidavit, Cunningham testified, in pertinent part:

“7. On March 6, 2008, the subject property was inspected by Duane Ma-haffey and Jim Martin. The unsafe condition of the structure located on the subject property was photographed....
“8. On March 6, 2008, placards were placed on said structure notifying the public [of] its unsafe condition.
“9. On March 10, 2008, Frank Lan-ford, Jr., a licensed third party contractor, completed a structural evaluation report determining that the subject property was not feasible for repair and/or rehabilitation....
“10. On March 17, 2008, the title to the subject property was searched. The following persons were listed as last assessing the subject property for state taxes and mortgagees: Lizzie Baker, Chester Lee Baker and Lou Gehrig Baker; Chester Lee Baker; and Am-south Bank a/k/a Regions Bank.
“11. On March 20, 2008, pursuant to Ala.Code (1975) § 11-40-30 et seq., the Office of Community Development sent Official Notice NO. 08-2905PNS to Lizzie Baker, Chester Lee Baker and Lou' Gehrig Baker; Chester Lee Baker; and Amsouth Bank a/k/a Regions Bank via certified mail with return receipt and first class mail. Official Notice NO. 08-2905PNS stated the municipal building official had determined that the subject structure was unsafe and constituted a public nuisance and gave until April 21, 2008, to demolish said nuisance. The official notice also set out the procedures to file an objection to the determination that the subject structure was unsafe and a public nuisance and to request a public hearing regarding same. The deadline to request a hearing was April 10, 2008....
“12. On March 20, 2008, Official Notice NO. 08-2905PNS was also posted at the entrance of the subject structure.
“13. On March 20, 2008, pursuant to Ala.Code (1975) § 11^40-30 et seq., the Office of Community Development filed a ‘Notice of Public Nuisance’ in the Probate Court of Madison County stating that the subject structure was unsafe for occupancy and use and constitutes a public nuisance....
“14. On April 15, 2008, I contacted the Administrative Aide to the Huntsville City Council and was informed that no one had filed an objection to the determination that the subject structure was unsafe and a public nuisance and/or requested a public hearing regarding same.
“15. On April 22, 2008, the Office of Community Development re-inspected the subject property and found that the nuisance had not been demolished or otherwise [abated],
“16. On April 25, 2008, the Office of Community Development sent notice that on May 15, 2008, the subject property would be presented to the Huntsville City Council as a public nuisance for demolition and/or removal of the unsafe structure. Said notice advised of the right to appear at the meeting and address the Huntsville City Council concerning this matter. Said notice was sent via certified mail with return receipt and first class mail to: Lizzie Baker, Chester Lee Baker and Lou Gehrig Baker; Chester Lee Baker; and Am-south Bank a/k/a Regions Bank....
“17. On May 15, 2008, the Huntsville City Council passed Resolution 08-425 providing that the subject structure would be demolished' at the expiration of 10 days....
“18. No appeal of Resolution 08-425 was filed in the Circuit Court of Madison County within 10 day[s] as required by Ala.Code (1975) § 11-40-82.
“19. On June 23, 2008, the subject structure was demolished by [the] City of Huntsville, Public Works Department[,] and steps were subsequently taken to file an assessment against the subject property for the cost of demolition.”

On October 4, 2011, Ross filed a response to the City’s summary-judgment motion, arguing that the City had failed to give him notice of the demolition. He attached to his response, among other evi-dentiary submissions, his own affidavit, which stated, in pertinent part:

“3. On March 28, 2008, the Judge of Probate of Madison County ordered and decreed a sale of the property in question for delinquent City of Huntsville, Madison County, and State of Alabama taxes....
“4. On May 9, 2008, [Ross] purchased the property for the said delinquent municipal, and state taxes....
“7. On August 20, 2008[,] the [City] recorded a Notice of Property Assessment for the demolition of the residential structure in the name of the former owners....
“[9]. On November 24, 2008, [Ross] received a bill from the Madison County Tax Collector for a Demolition Lien on the property given to the said tax collector by the [City]. The tax collector added the amount of the Demolition Lien to the amount of real property taxes owed for the property....”

On November 21, 2011, the trial court entered a summary judgment in favor of the City. Ross filed a postjudgment motion on December 21, 2011; that motion was denied on January 5, 2012. On February 15, 2012, Ross filed his notice of appeal to the this court. This court transferred the appeal-to the Alabama Supreme Court for lack of subject-matter jurisdiction on March 16, 2012; the supreme court subsequently transferred the appeal back to this court, pursuant to Ala.Code 1975, § 12-2-7.

On appeal, Ross argues that the City was required to give him notice of the demolition of the structure. In support of his argument, he cites Ala.Code 1975, § 11-53B-3, which sets forth certain notice requirements that must be met before a municipality may demolish a structure; that section provides, in pertinent part:

“(a) Whenever the appropriate city official ... shall find that any building, structure, part of building or structure, party wall, or foundation situated in the city is unsafe to the extent that it is a public nuisance, the official shall give the person or persons, firm, association, or corporation who is the record owner, notice to remedy the unsafe condition of the building or structure by certified or registered mail to the owner’s last known address and to the owner at the address of the property....”

Ross further cites Pivirotto v. City of Pittsburgh, 515 Pa. 246, 251, 528 A.2d 125, 128 (1987), in which the Pennsylvania Supreme Court determined that a purchaser of property at a tax sale is an equitable owner of the property, thus entitling the purchaser to notice prior to demolition of a structure on that property. We note, however, that the present case is distinguishable from Pivirotto. In Pivirotto, the tax-sale purchaser had purchased the property at issue by the time the City of Pittsburgh sent the required notices. In the present case, however, at the time the required notices were sent, Ross had not yet purchased the property at the tax sale. Thus, the City in this case complied with the statute, and that compliance is not changed by the fact that Ross purchased the property after the notices had been sent.

Although Ross attempts to make additional arguments for the first time in his reply brief, “[w]e note the ‘well-established principle of appellate review that we will not consider an issue not raised in an appellant’s initial brief, but raised only in its reply brief.’ ” Kyser v. Harrison, 908 So.2d 914, 917 (Ala.2005) (quoting Brown v. St. Vincent’s Hosp., 899 So.2d 227, 234 (Ala.2004)). Thus, we decline to address those arguments.

Based on the foregoing, we conclude that Ross has failed to demonstrate error on appeal. Thus, we affirm the trial court’s summary judgment.

AFFIRMED.

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


author: THOMAS, Judge.

text:
    CANYON DEVELOPMENT CO., INC., and Ann Davis v. HOLCOMB STORAGE and Steve Holcomb.
    2110541.
    Court of Civil Appeals of Alabama.
    Aug. 10, 2012.
    Certiorari Denied Oct. 12, 2012 Alabama Supreme Court 1111514.

      Steven M. Brom of The Brom Law Firm LLC, Birmingham, for appellants.
    Judson B. Allen of Jackson, Fikes, Hood & Brakefíeld, Jasper, for appellees.
   THOMAS, Judge.

Canyon Development Co., Inc., and Ann Davis appeal from a judgment of the Walker Circuit Court granting a motion for a summary judgment in favor of Holcomb Storage and Steve Holcomb.

The record indicates the following. Holcomb Storage is a self-service storage facility located in Walker County. Canyon Development entered into a written rental agreement (“the rental agreement”) with Holcomb Storage on June 1, 2007, for the use of two storage units. The rental agreement states, in pertinent part:

“In addition to the landlord’s hen as provided by Alabama law, but not in lieu thereof, landlord shall have at all times a valid contractual lien for all rentals or other sums of money becoming due hereunder from tenant upon all items situated in the premises, either now or in the future, and upon default by tenant, landlord may enter upon the demised premises as set out further herein and take possession of any and all items situated on the premises, without liability for trespass or conversion, and sell the same without notice at public or private sale, at which landlord or its assignees may purchase.
“... [Ljandlord may give written notice to tenant and begin enforcement action under Alabama law.”

The rental agreement required, among other things, that Canyon Development would pay Holcomb Storage $150 in rent each month.

Canyon Development stopped paying rent in July or August 2008. In his deposition, Holcomb, the owner of Holcomb Storage, testified that he attempted to personally contact Davis, an owner of Canyon Development, approximately two months after the last rental payment was received but that they were unable to communicate due to poor cellular-telephone service. Holcomb further testified that he sent two letters to Canyon Development by regular mail, one in October 2008 and a second letter sometime thereafter. Holcomb also stated that he had contacted Chuck Presley, a former Canyon Development employee, who had served as a Canyon Development point of contact; however, Presley informed Holcomb that he was no longer employed by Canyon Development.

Sometime in December 2008, Holcomb Storage sold the contents of the storage units for $500. Canyon Development asserts that it became aware of the sale only when a third party notified Canyon Development that its equipment was being used in Florida. Canyon Development and Davis filed a complaint against Holcomb Storage and Holcomb on December 6, 2009, alleging breach of contract, violation of the Alabama Self-Service Storage Act, codified at Ala.Code 1975, §§ 8-15-32 to -38 (“the Act”), negligence, the tort of outrage, and conversion.

Holcomb Storage and Holcomb filed an answer on February 25, 2010. After the parties conducted discovery, including taking the depositions of Davis and Holcomb, Holcomb Storage and Holcomb filed a motion for a summary judgment on May 23, 2011. Canyon Development and Davis filed a response to the motion for a summary judgment on September 30, 2011. The trial court issued an order on December 21, 2011, granting the motion for a summary judgment. Canyon Development and Davis filed a timely appeal with our supreme court on January 27, 2012; that court transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

“Appellate review of a summary judgment is de novo. Ex parte Ballew, 771 So.2d 1040 (Ala.2000). A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing ‘that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.’ Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, ‘the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by “substantial evidence.” ’ Lee, 592 So.2d at 1038 (footnote omitted). ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12(d).”

Perry v. Federal Nat’l Mortg. Ass’n, 100 So.3d 1090, 1094 (Ala.Civ.App.2012).

Canyon Storage and Davis list five issues in the argument section of their brief: (1) Holcomb Storage breached the express terms of the rental agreement, (2) any ambiguity as to the terms of the rental agreement must be construed against Holcomb Storage, (3) nothing in the Act allows Holcomb Storage to eliminate the duties imposed by the Act, (4) Holcomb Storage breached the duties owed to Canyon Development giving rise to causes of action for negligence and wilfulness/wantonness, and (5) Canyon Development did not consent to Holcomb Storage’s wrongful taking of the property in the storage unit.

Taking the issues out of order, Canyon Development and Davis assert as their second issue that any ambiguity of the terms of the rental agreement must be construed against Holcomb Storage. However, Canyon Development and Davis did not raise the issue of an ambiguity in the rental agreement in the trial court. Therefore, we do not address the issue. See T.J.H. v. S.N.F., 960 So.2d 669, 673 (Ala.Civ.App.2006) (“This court may not consider an issue that is raised for the first time on appeal. Burleson v. Burleson, 875 So.2d 316, 322 (Ala.Civ.App.2003), and Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992). Therefore, we will not further address this issue on appeal.”).

We next address the first and third issues simultaneously. Canyon Development and Davis argue that the language of the rental agreement quoted above required Holcomb Storage to comply with the provisions of the Act in the sale of the property and that, because Holcomb Storage failed to comply with those provisions, it breached the rental agreement. Canyon Development and Davis also seem to argue that the language in the rental agreement — “in addition to the landlord’s liens as provided by Alabama law, but not in lieu thereof, landlord shall have at all times a valid contractual lien” — somehow means that the rental agreement “specifically establishes a lien under the Act.” Therefore, they seem to argue, the rental agreement established a lien solely pursuant to the Act, thus making the requirements of the Act mandatory on Holcomb Storage.

Section 8-15-34 of the Act provides, in pertinent part:

“An owner’s lien as provided for a claim which has become due may be satisfied as follows:
“(3) After the occupant has been in default continuously for a period of 30 days, the owner may begin enforcement action if the occupant has been notified in writing. Said notice shall be delivered in person or sent by certified or registered mail to the last known address of the occupant....
“(5) The notice required by this section shall include:
. “a. An itemized statement of the owner’s claim showing the sum due at the time of the notice and the date when the sum became due;
“b. A brief and general description of the personal property subject to the lien. Such description shall be reasonably adequate to permit the person notified to identify such property; except that any container including, but not limited to, a trunk, valise, or box that is locked, fastened, sealed, or tied in a manner which deters immediate access to its contents may be described as such without describing its contents;
“c. A notification of denial of access to the personal property, if such denial is permitted under the terms of the rental agreement, which notification shall provide the name, street address, and telephone number of the owner or his designated agent whom the occupant may contact to respond to such notification;
“d. A demand for payment within a specified time, not less than 15 days after delivery of the notice;
“e. A conspicuous statement that, unless the claim is paid within the time stated in the notice, the personal property will be advertised for sale or other disposition and will be sold or otherwise disposed of at a specified time and place.
“(7) After the expiration of the time given in the notice, an advertisement of the sale or other disposition shall be published once a week for two consecutive weeks in a newspaper of general circulation in the county where the self-service storage facility is located. The advertisement shall include:
“a. A brief and general description of the personal property reasonably adequate to permit its identification as provided in paragraph (5)b. of this section; the address of the self-service storage facility and the number, if any, of the space where the personal property is located; and the name of the occupant and his last known address;
“b. The time, place, and manner of the sale or other disposition. The sale or other disposition shall take place not sooner than 15 days after the first publication.
“(11) Before any sale or other disposition of personal property pursuant to this section, the occupant may pay the amount necessary to satisfy the lien and the reasonable expenses incurred under this section and thereby redeem the personal property. Upon receipt of such payment, the owner shall return the personal property, and thereafter the owner shall have no liability to any person with respect to such personal property.
“(14) If the requirements of this article are not satisfied, if the sale of the personal property is not in conformity with the notice of sale, or if there is a willful violation of this article, nothing in this section affects the rights and liabilities of the owner, occupant, or any other person.”

(Emphasis added.) Canyon Development and Davis specifically argue that Holcomb Storage’s failure to serve notice of the default by certified or registered mail, failure to advertise the sale, failure to provide an opportunity to cure, and failure to make an inventory of the property sold resulted in violation of the Act and in a breach of the rental agreement.

Holcomb Storage and Holcomb argue that the terms of the rental agreement did not require Holcomb Storage to follow the procedures described in the Act for satisfying a self-service storage-facility owner’s lien. Further, Holcomb Storage and Holcomb argue that the terms of the rental agreement created a contractual lien in addition to the statutory lien created by the Act. They assert that the terms and conditions of the rental agreement gave Holcomb Storage the authority to enter the storage unit, to confiscate the property, and to sell the property upon default by Canyon Development without the necessity of complying with the Act.

Neither our supreme court nor this court have addressed whether self-service storage-facility owners such as Holcomb Storage are required to comply with the Act in order to sell the property in a storage facility after the tenant defaults on payment of the storage fee and the rental agreement provides for such a remedy. However, a close reading of the Act provides clarification. Alabama Code 1975, § 8-15-34, provides, in pertinent part, that “[a]n owner’s lien as provided for a claim which has become due may be satisfied as follows.... ” (Emphasis added.) As this court stated in Ex parte Mobile County Board of School Commissioners, 61 So.3d 292, 294 (Ala.Civ.App.2010):

“[T]he use of the word ‘may’ indicates a discretionary or permissive act, rather than a mandatory act. American Bankers Life Assurance Co. v. Rice Acceptance Co., 739 So.2d 1082, 1084 (Ala.1999). See also Bowdoin Square, L.L.C. v. Winn-Dixie Montgomery, Inc., 873 So.2d 1091, 1098-99 (Ala.2003) (stating that our supreme court has long recognized that the word ‘may’ denotes a permissive alternative rather than a mandatory restriction).”

Additionally, § 8-15-36 of the Act provides that

“[n]othing in this article shall be construed as in any manner impairing or affecting the right of the parties to create additional rights, duties, and obligations in and by virtue of the rental agreement. The rights provided by this article shall be in addition to all other rights allowed by law to a creditor against his debtor.”

Although there is no Alabama caselaw directly on point, decisions of other jurisdictions provide insight into this issue. In Dallas v. S.A.G., Inc., 836 F.2d 1307, 1309 (11th Cir.1988), the Eleventh Circuit Court of Appeals decided the issue whether a landlord possessed a contractual lien as well as a statutory lien provided by Ala. Code 1975, § 35-9-60. Applying Alabama law, the Dallas court concluded .

“that the lease agreement provides [the landlord] with a contractual lien. Section 35-9-60 provided [the landlord] with a statutory lien regardless of whether the lease addressed the issue. The provisions in the lease regarding a lien did not serve to create or protect that statutory lien. Thus, if the provision in the lease did not serve to create a contractual lien, it served no purpose. Just as we frequently observe when interpreting statutes, we do not believe that the words in the lease were intended to have no meaning and to serve no purpose. If the words of the agreement are to be given any meaning, the lease must be read to express the parties’ intention to create a contractual lien. Therefore, according to Alabama law, [the landlord] has a contractual lien on the [tenant’s] property. Because the district court affirmed the bankruptcy court’s conclusion that [the landlord] did not possess a contractual lien, the decision of the district court must be reversed and the matter remanded for further proceedings.”

Id. at 1309.

Similarly, state appellate courts in Oklahoma and Georgia have held that comparable self-service storage statutes in those states do not create mandatory statutory-lien requirements that self-service storage-facility owners are compelled to follow. Griffin v. Teague, 115 P.3d 899 (Okla.Civ.App.2005); Tompkins v. Mayers, 209 Ga.App. 809, 434 S.E.2d 798 (1993).

The Oklahoma Self-Service Storage Facility Lien Act provides, in pertinent part:

“A. An owner’s lien as provided for a claim which has become due may be satisfied as provided by this section. The possessory lien authorized by this section shall be prior to any previously perfected security interest in the personal property pursuant to Section 1-9-333 of Title 12A of the Oklahoma Statutes.”

Okla. Stat. tit. 42, § 197 (emphasis added). As in the present case, the outcome of Griffin hinged upon whether the self-service storage-facility owner was required to comply with the statute in the sale of the tenant’s property. 115 P.3d at 900. The Oklahoma. Court of Civil Appeals determined that,

“[i]n reading the [Self-Service Storage Facility Lien] Act, it is clear that the legislature provided a lien to owners of self-storage facilities to secure the payment of rent for the storage space, and specified the procedure to foreclose the lien given by the [Self-Service Storage Facility Lien] Act. It is equally clear, however, that owners of self-storage facilities who do not seek the lien protection of the [Self-Service Storage Facility Lien] Act have other lien protection as may be provided by law or by special contract or agreement.”

Id. at 901. In holding that § 197 of the statute was not mandatory upon the owner, the Griffin court provided further analysis of the Oklahoma statute:

“We observe that the legislature expressly provided: ‘Nothing in this act shall be construed as in any manner impairing or affecting the right of parties to create liens by special contract or agreement, nor shall it in any manner affect or impair other liens arising at common law[,] in equity, or by any statute of this state.’ 42 O.S. 2001 § 199. The legislature also said: ‘If the requirements of this act are not satisfied, if the sale of the personal property is not in conformity with the notice of sale, or if there is a willful violation of this act, nothing in this section [governing enforcement of the lien,] affects the rights and liabilities of the owner, occupant or any other person.’ 42 O.S. 2001 § 197(N).”

Id.

In Tompkins, the occupant of a self-service storage facility also claimed that the owner had unlawfully sold the property stored in the unit to satisfy past-due rents, specifically arguing that the owner had failed to follow the procedure set out in the Georgia Self-Service Storage Act, Ga.Code Ann. § 10-4-213. 209 Ga.App. at 810, 434 S.E.2d at 799. Section 10-4-213 of the Georgia statute provides, in pertinent part, that “[i]f Occupant has been in default continuously for thirty (30) days, Owner may enforce its lien, provided Owner shall comply with the following procedure.” (Emphasis added.) The Georgia Court of Appeals determined that, “[i]f the owner wants the protection of the statutory owner’s lien, and the right to enforce such lien, the owner must comply with the statute’s specific requirements. OCGA § 10-4-213. Failure to do so deprives the owner of this statutory remedy.” Tompkins, 209 Ga.App. at 810, 434 S.E.2d at 800.

The Tompkins court found that the language of the rental agreement did not require the owner of the self-service storage facility in that case to follow the sale procedure set out in Ga.Code Ann. § 10-4-213. Id. To the contrary, the Tompkins court found that the rental agreement authorized the owner to sell the property stored at the facility if the rent remained unpaid for 30 days and that, by signing the rental agreement, the occupant “both relinquished all claim to the goods and assigned title to the owner.” 209 Ga.App. at 811, 434 S.E.2d at 800. In affirming the judgment of the trial court, the Tompkins court stated, “[h]aving acted in accordance with the contract and enforced its provisions, and not having depended on the [Georgia Self-Service Storage] Act for the remedy of an owner’s lien, the owner did not violate the [Georgia Self-Service Storage] Act.” Id.

Considering the plain language of the Act, parties to a rental agreement for a self-service storage unit possess the authority to create a contractual lien outside the statutory lien created by the Act. Therefore, although the Act provides a self-service storage owner one mechanism for recovering delinquent rent, the Act is not the only avenue of redress available. We agree with Holcomb Storage and Holcomb that the language of the Act permits, but does not require, self-service storage-facility owners to satisfy liens under the Act.

Based on the foregoing, we conclude that Holcomb Storage did not breach the terms of the rental agreement. The language of the rental agreement established a contractual lien that authorized Holcomb Storage to sell Canyon Development’s property upon default by Canyon Development. Holcomb Storage sold the property in accordance with the rental agreement signed by Canyon Development, and, therefore, Holcomb Storage was not required to proceed under the provisions of the Act.

We now address Canyon Development and Davis’s fourth issue, in which they assert that Holcomb Storage breached duties it owed Canyon Development, giving rise to negligence and wilfulness/wantonness claims. Canyon Development and Davis make no argument regarding the wilfulness/wantonness claims in their brief; therefore those claims are waived on appeal. See Crews v. National Boat Owners Ass’n Marine Ins. Agency, Inc., 46 So.3d 933 (Ala.2010). However, Canyon Development and Davis specifically assert that the Act creates a statutory duty that gives rise to a cause of action for statutory negligence or negligence per se. “In order for a cause of action to be based on a statutory violation, the following requirements must be met: ... (3) the defendant must have violated the statute....” Jones v. BP Oil Co., 632 So.2d 435, 441 (Ala.1993). Because we have established that Holcomb Storage did not violate the Act, we pretermit further discussion of this issue.

Finally, Canyon Development and Davis assert that Canyon Development did not consent to the sale of the property it stored with Holcomb Storage and, therefore, that the sale gave rise to a claim of conversion. We first note that Canyon Development and Davis provide no citation to any legal authority in this section of their brief. See Rule 28(a)(10), Ala. R.App. P. However, as we have previously noted, the rental agreement signed by Canyon Development clearly authorized Holcomb Storage to take possession of and to sell the property stored in the self-service storage facility in the event of a default by Canyon Development.

Based on the foregoing, we affirm the summary judgment because Holcomb Storage acted in accordance with the rental agreement and enforced its provisions without resorting to the Act for the remedy of an owner’s lien.

AFFIRMED.

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

      . Canyon Development asserts that the monthly rental payment was paid by the automatic-bill-pay feature associated with its checking account and that the payments terminated around July or August 2008 unbeknownst to Canyon Development.

      . Alabama Code 1975, § 35-9-60, reads:
      "The landlord of any storehouse or other building shall have a lien on the goods, furniture, and effects belonging to the tenant, and subtenant, for rent, which shall be superior to all other liens, except those for taxes, and except as otherwise provided in Section 7-9A-333. In case the tenant or subtenant is adjudged a bankrupt, such lien on such goods, furniture, and effects of the bankrupt shall, as against the trustee in bankruptcy, attach only for unpaid rent accrued and which shall accrue within six months from the date of adjudication computed pro rata at the then current rate. The lien amount accrued and to accrue shall not be increased by reason of any default or breach of contract by the bankrupt. From the amount of such lien, so computed, the trustee in bankruptcy may deduct all payments and all demands which could be legally set up against the landlord by way of counterclaim. If the trustee in bankruptcy shall dispose of the lease as an asset of the bankrupt estate, then the landlord shall have a lien on the goods, furniture, and effects of any person holding under the trustee in bankruptcy.”

      . The Griffin court did find that a different Oklahoma statute requiring notice was applicable to that case but that the self-service storage-facility owner had complied with the particular requirements of that statute.

      . "In interpreting the provisions of an Act ..., a court is required to ascertain the intent of the legislature as expressed and to effectuate that intent. The legislative intent may be gleaned from the language used, the reason and necessity for the act, and the purpose sought to be obtained by its passage. Words used in a 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. If the language of the statute is clear and unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.”

        Tuscaloosa Cnty. Comm’n v. Deputy Sheriffs’ Ass’n of Tuscaloosa Cnty., 589 So.2d 687, 689 (Ala.1991) (citations omitted).