author: PER CURIAM. THOMPSON, P.J., THOMPSON, Presiding Judge,

text:
    James W. KEELING, individually and as personal representative of the estate of Neita B. Keeling v. Jamie KEELING, individually and as personal representative of the estate of Rex George Keeling. Jamie Keeling, individually and as personal representative of the estate of Rex George Keeling v. James W. Keeling, individually and as personal representative of the estate of Neita B. Keeling. James W. Keeling, individually and as personal representative of the estate of Neita B. Keeling v. Jamie Keeling, individually and as personal representative of the estate of Rex George Keeling. Jamie Keeling, individually and as personal representative of the estate of Rex George Keeling v. James W. Keeling, individually and as personal representative of the estate of Neita B. Keeling.
    2120612 and 2120613.
    Court of Civil Appeals of Alabama.
    Jan. 17, 2014.

      Jack Floyd of Floyd Law Firm, LLC, Gadsden, for James W. Keeling, individually and as personal representative of the estate of Neita B. Keeling.
    Adam K. Israel, Ed R. Haden, and Amy D. Adams of Balch & Bingham LLP, Birmingham; and Charles Y. Boyd of Rhea, Boyd, Rhea & Coggin, Gadsden, for Jamie Keeling, individually and as personal representative of the estate of Rex George Keeling.
   PER CURIAM.

James W. Keeling (“James”), individually and as personal representative of the estate of Neita B. Keeling (“Neita’s estate”), appeals, and Jamie Keeling (“Jamie”), individually and as personal representative of the estate of Rex George Keeling (“Rex’s estate”), cross-appeals, from a summary judgment of the Etowah Circuit Court (“the trial court”), which determined that Jamie and Rex’s estate were entitled to a judgment as a matter of law on James’s and Neita’s estate’s claims and which dismissed with prejudice all those claims with “costs taxed as paid,” and from a postjudgment order, which, among other things, denied Jamie’s and Rex’s estate’s “renewed motion for costs including attorneys’ fees.”

Neita was the mother of two sons, Rex and James. Neita died on July 13, 2009. Rex died on June 3, 2010. Jamie is Rex’s widow.

In December 2010, Neita’s estate filed in the Etowah Probate Court (“the probate court”) a verified claim against Rex’s estate, seeking, among other things, the return of approximately $74,000 worth of SouthTrust Bank and/or Wachovia Bank stock, approximately $200,000 worth of dividends paid on that stock, and various items of personal property that Rex had allegedly converted from Neita.

In May 2011, Rex’s estate filed in the trial court a petition to remove the administration of Rex’s estate from the probate court to the trial court. In June 2011, the trial court granted the petition, concluding that Rex’s estate “would be best served and better administrated by being in a court of equity”; that proceeding was assigned case number CV-11-219.

In July 2011, James and Neita’s estate filed in the trial court as a separate action a four-count complaint against Jamie and Rex’s estate, seeking the return of virtually the same property described in the verified claim against Rex’s estate; that action was assigned case number CV-11-286. In the complaint, James and Neita’s estate alleged that Rex, and subsequently Jamie and Rex’s estate, had converted that property.

On September 21, 2011, Jamie and Rex’s estate filed in the trial court a joint motion to dismiss the July 2011 conversion action or, in the alternative, a motion to consolidate the actions. Jamie and Rex’s estate submitted a brief and exhibits in support of their motion. Among other things, Jamie and Rex’s estate asserted that the conversion claims under counts one and two of the complaint failed to state a claim for which relief could be granted and that the conversion claims under counts three and foui* of the complaint were barred by the six-year statute of limitations applicable to conversion claims. As noted, in the alternative, Jamie and Rex’s estate sought to consolidate the verified-claim action and the conversion action. Because the trial court subsequently consolidated the actions in May 2012, we omit any further references to Jamie and Rex’s estate’s motion to consolidate.

Also on September 21, 2011, James and Neita’s estate filed a motion in opposition to Jamie and Rex’s estate’s motion to dismiss, denying the material allegations in the motion and requesting a hearing on the matter. James and Neita’s estate also filed an amended complaint and demanded a jury trial.

On September 23, 2011, Jamie and Rex’s estate filed an amended joint motion to dismiss. Jamie and Rex’s estate submitted a brief and exhibits in support of their motion. Among other things, Jamie and Rex’s estate asserted that their statute-of-limitations defense applied to the conversion claims under all four counts. In October 2011, James and Neita’s estate filed a response to Jamie and Rex’s estate’s motion to dismiss.

In May 2012, James and Neita’s estate filed another amended complaint to add count five; that count alleged that Rex had held the property described in count one of the complaint (i.e., primarily bank stock and dividends) in constructive trust for Neita before she died and that Jamie and Rex’s estate currently were holding that property in constructive trust for Neita’s estate. Also in May 2012, Neita’s estate filed an amendment to the verified claim against Rex’s estate to assert the additional allegations set forth in count five.

In June 2012, Jamie and Rex’s estate filed an amended joint motion to dismiss or, in the alternative, for a summary judgment. Jamie and Rex’s estate submitted a brief and exhibits in support of their motion. In that motion, Jamie and Rex’s estate sought, among other things, an award of the payment of costs pursuant to § 43-2-354, Ala.Code 1975; they asserted that “costs” under that statutory provision included the payment of attorney’s fees.

In July 2012, James and Neita’s estate filed an another amended complaint to add count six; that count, once again, alleged that Rex had held the property described in count one of the complaint in constructive trust for Neita before she died and that Jamie and Rex’s estate currently were holding that property in constructive trust for Neita’s estate. That count further alleged, in part:

“4. From October 2005 and subsequent to that date, until the death of [Neita], she had progressive cognitive impairment. From time to time she suffered from confusion, disorientation, memory loss, all of which culminated in a diminished mental condition.
“5. She relied heavily on her son, [Rex]. There was a confidential relationship that existed between them. [Rex] took advantage of his position and the mental and physical weaknesses of [Nei-ta], and through undue influence practiced by him on her through 2008, and up to her death, had [Neita] transfer to [Rex] in his name [the property described in count one of the complaint].
“6. All of the above was accomplished by [Rex] through undue influence on his mother, [Neita], and by abuse of his confidential relationship with her.”

Also in July 2012, Neita’s estate filed a second amendment to the verified claim to assert the additional allegations set forth in count six of the amended complaint.

On August 8, 2012, James and Neita’s estate filed a response to Jamie and Rex’s estate’s amended joint motion to dismiss or, in the alterative, for a summary judgment. On August 17, 2012, the trial court held a hearing on that motion and heard the parties’ oral arguments.

On August 28, 2012, the trial court entered an order reserving a ruling on Jamie and Rex’s estate’s motion and granting James and Neita’s estate 60 days to perform additional discovery to support their claims and to submit a supplemental response and/or a legal memorandum. The trial court set a hearing for November 15, 2012, to hear additional oral arguments of the parties.

October 30, 2012, James and Neita’s estate filed an amended complaint to add count seven; that count, once again, alleged that Rex had held the property described in count one of the complaint in constructive trust for Neita before she died and that Jamie and Rex’s estate currently were holding the property in “constructive trust, or in the alternative, in resulting trust” for Neita’s estate. Count seven, in addition to containing the allegations contained in count six, alleged that Rex had possessed the power of attorney for Neita and further alleged, in part:

“6. From 1997 through 2004 [Rex] had [Neita] transfer to him stock from which he received stock dividends. [Neita] employed the services of ... an attorney for the purpose of retaining the return of her stock and stock dividends.
“7. On April 14, 2004, [Rex], in writing, for good consideration, agreed to transfer back and deliver to [Neita] the stock that had been transferred to him prior to April 14, 2004, and to return the dividends that he had collected on it. The transfer was to be made back to [Neita], He agreed to transfer the stock back to [Neita] by January 15, 2005.[]
“8. Prior to January 15, 2005, [Rex] had been holding said items of stock and dividends in constructive or resulting trust for [Neita].
“9. That although [Rex] agreed to return the stock on January 15, 2005, and terminate the trust, he did not return the stock nor the dividends and [on] that date[ ] converted the stock and dividends received held in trust for [Nei-ta].
“10. He agreed to deliver the stock and its dividends on or before January 15, 2005. He failed to do so. At that time, January 15, he converted those assets.
“11. All stock dividends and other stock received by him from [Neita] [from] 1997 through 2004 were being held in constructive or resulting trust for her; that [Rex] agreed to return all of the stocks and dividends held by him in trust by written instrument dated April 14, 2004 and agreed to deliver the stock and its dividends by January 15, 2005.
“12. That [Rex] failed to deliver the stock and dividends on January 15, 2005, but after demand and after agreement to deliver, he converted those stocks to his own use and continued to obtain stock from [Neita] through 2008 which were not returned to her or her estate after demand.”

On October 31, 2012, Jamie and Rex’s estate filed an answer to James and Nei-ta’s estate’s amended complaint, denying the material allegations in the amended complaint and asserting a number of affirmative defenses. Also on October 31, 2012, Jamie and Rex’s estate filed a renewed motion to dismiss or, in the alternative, for a summary judgment.

On November 15, 2012, the trial court held the second hearing on Jamie and Rex’s estate’s motion to dismiss or, in the alternative, for a summary judgment. During that hearing, the trial court heard oral arguments.

On November 29, 2012, the trial court entered a summary judgment in favor of Jamie and Rex’s estate on all of James’s and Neita’s estate’s claims against them and dismissed all those claims with “costs taxed as paid.”

On December 11, 2012, James and Nei-ta’s estate filed a motion to alter, amend, or vacate the judgment. On December 17, 2012, Jamie and Rex’s estate filed a response to James and Neita’s estate’s post-judgment motion and a renewed motion for costs, including the payment of attorney’s fees.

On February 20, 2013, the trial court held a hearing on the postjudgment motions. During that hearing, the trial court heard oral arguments. On February 26, 2013, the trial court entered an order denying James and Neita’s estate’s post-judgment motion and denying Jamie and Rex’s estate’s renewed motion for “costs including attorneys’ fees.”

On April 5, 2013, James and Neita’s estate timely appealed. On April 19, 2013, Jamie and Rex’s estate timely cross-appealed. The appeals were transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975. The court consolidated the appeals.

James and Neita’s Estate’s Appeals

James and Neita’s estate contend on appeal that the trial court erred in entering a summary judgment in favor of Jamie and Rex’s estate and against Neita’s estate as to what they describe as Neita’s estate’s claims for a constructive trust or a resulting trust. James and Neita’s estate’s arguments as to this contention are somewhat confusing. James and Neita’s estate argue that Neita’s estate was not barred by the statute of limitations from enforcing what they claim was Rex’s written promise of April 14, 2004, to return stock and dividends received by him from Neita from 1997 through 2004 and from recovering additional stock and dividends received by him from 2005 through 2008. James and Neita’s estate also argue that the statute of limitations never began to run on Nei-ta’s estate’s claims for a constructive or resulting trust so long as Rex aeknowl-edged the existence of a constructive or resulting trust and Neita’s superior interest in the trust property; as to this particular argument, they maintain that Rex never repudiated the trust even after he supposedly agreed to return the stock, via the April 14, 2004, acknowledgment. James and Neita’s estate argue that even if Rex repudiated the trust, “it would not have occurred until after 2005 and well within any six year statute of limitations.”

At the outset, we note that James and Neita’s estate do not argue that the trial court erred in entering a summary judgment in favor of Jamie and Rex’s estate and against James as to this issue; therefore, we summarily affirm the summary judgment as to James. “An argument not made on appeal is abandoned or waived.” Avis Rent A Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1124 n. 8 (Ala. 2003). See also Galaxy Cable, Inc. v. Davis, 58 So.3d 93, 99 (Ala.2010) (“Failure by an appellant to argue an issue in its brief waives that issue and precludes it from consideration on appeal.”).

We also note that James and Neita’s estate appear to use the terms “constructive trust” and “resulting trust” interchangeably. However, although both are trusts that are implied by operation of law, Smith v. Davis, 352 So.2d 451, 453 (Ala.Civ.App.1977), they are distinct concepts. “A constructive trust is a remedy created to prevent unjust enrichment.” Beasley v. Mellon Fin. Sens. Corp., 569 So.2d 389, 394 (Ala.1990). Resulting trusts, on the other hand, “are mainly in two categories, (1) those arising on a failure of an express trust and (2) those arising on a conveyance to one person on a consideration from another, ie., commonly referred to as a purchase-money resulting trust.” Smith v. Davis, 352 So.2d at 454. “As applicable to purchase-money resulting trusts, the law in Alabama states that such a trust arises only where one has purchased property with the funds of another and has taken title in himself.” McClellan v. Pennington, 895 So.2d 892, 896 (Ala.2004). Therefore, “[a]n essential element for a declaration of a resulting trust is the payment by one person and conveyance to another.” Id. In this case, James and Neita’s estate failed to allege or to offer any evidence below and have failed to point this court to any portion of the record indicating that during her life Neita attempted, but failed, to create an express trust or that she gave Rex money with the intent that he purchase property on her behalf. Thus, James and Neita’s estate’s repeated references to a “resulting trust” are misplaced and inapplicable. For the sake of simplicity, we hereinafter refer to the claims for what James and Neita’s estate describe as a constructive trust or a resulting trust as claims for a constructive trust.

“[A] constructive trust is an equitable remedy; and a request to impose such a trust is not a cause of action that will stand independent of some wrongdoing.” Radenhausen v. Doss, 819 So.2d 616, 620 (Ala.2001). In Gulf States Steel, Inc. v. Lipton, 765 F.Supp. 696, 704 (N.D .Ala.1990), the federal district court for the Northern District of Alabama noted that

“the court’s research has revealed no case in any jurisdiction that supports [Gulf States Steel’s] argument that constructive trust constitutes a cause of action. Rather, the case law indicates unanimously that a constructive trust is a remedy imposed to prevent the enjoyment of a fraud or of a breach of fiduciary duty.”

In other words, a request for the imposition of a constructive trust must be tethered to some viable underlying cause of action. Radenhausen, supra.

In this case, James and Neita’s estate make no arguments on appeal regarding the applicable statute of limitations or the propriety of the trial court’s summary judgment as to the underlying independent causes of action. Thus, any arguments as to the propriety of the trial court’s summary judgment in favor of Jamie and Rex’s estate on those underlying claims have been waived. Galaxy, supra; Avis, supra. See also Meigs v. Estate of Mobley, 134 So.3d 878, 889 n. 6 (Ala.Civ.App.2013) (“[ajrguments not raised in the appellant’s initial brief are deemed waived”); Kennesaw Life & Accident Ins. Co. v. Old Nat’l Ins. Co., 291 Ala. 752, 754, 287 So.2d 869, 871 (1973) (this court “will simply treat ... issues [not raised in the appellant’s initial brief] as not before th[is] [c]ourt”). “It is the appellant’s obligation to demonstrate error on the part of the trial court, and ... that includes providing [the appellate court] with citations to pertinent cases, statutes, and other authorities.” FabArc Steel Supply, Inc. v. Composite Constr. Sys., Inc., 914 So.2d 344, 355 (Ala.2005). When an appellant fails to properly argue an issue, that issue is waived and will not be considered. Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982). Thus, other than noting our awareness of the existence of caselaw and other authorities that address the underlying independent causes of action, including the applicable statutes of limitations, we will not go further and attempt to analyze that case-law and those authorities for the purpose of reversing the judgment of the trial court. FabArc, 914 So.2d at 355. Accordingly, the trial court’s summary judgment in favor of Jamie and Rex’s estate on this issue is affirmed.

Jamie and Rex’s Estate’s Cross-Appeals

In their cross-appeals, Jamie and Rex’s estate contend that the trial court erred in failing to award them costs pursuant to § 43-2-354, Ala.Code 1975; that statute provides, in pertinent part:

“The personal representative of the estate of a decedent may give notice in writing to the claimant or anyone having a beneficial interest in a claim against the estate that such claim is disputed in whole or in part; if in part, specifying the part disputed.... If the claimant in such proceeding shall fail to recover upon the disputed part of such claim, he shall be taxed with the costs thereof.”

Jamie and Rex’s estate assert that, by using the word “shall,” the legislature intended the award of costs to be mandatory in instances where, as here, the personal representative of an estate successfully disputes a claim against an estate. Jamie and Rex’s estate also maintain that “costs” under § 43-2-354 should be construed to include the payment of attorney’s fees. Although Jamie and Rex’s estate acknowledge that under Alabama law costs generally do not include the payment of attorney’s fees, they maintain that, in this instance, the probate code provides for an exception to the general rule. As to this argument, in addition to § 43-2-354, Jamie and Rex’s estate refer this court to § 43-8-196, Ala.Code 1975, and § 34-3-60, Ala.Code 1975, and case-law construing those statutory provisions. There is no caselaw specifically addressing whether the payment of attorney’s fees should be construed as part of “costs” under § 43-2-354.

At the outset, we note that, in this instance, the request for costs, including attorney’s fees, to be taxed against James and Neita’s estate was made in writing in a pretrial motion to dismiss or for a summary judgment pertaining to the issue of liability only filed by Jamie and Rex’s estate. The request was repeated orally at the beginning of the hearing on the motion. Jamie and Rex’s estate, as the mov-ants, were required to present evidentiary proof regarding issues raised in the motion for a summary judgment, i.e., liability, but were not required to present evidence on other issues not being addressed at that time, i.e., costs and attorney’s fees. Although the amount and specific types of costs sought by Jamie and Rex’s estate were not specified in their written or oral requests, those requests were sufficient to notify the trial court and the opposing parties that costs were being sought and that further proceedings might be required to ascertain those costs if the issue of liability was determined in favor of Jamie and Rex’s estate in the pretrial summary-judgment proceeding. Because the trial court entered a summary judgment regarding liability and proceeded to enter an order declining to award any costs of any type against James and Neita’s estate, no further proceedings were conducted to ascertain the amount or type of costs to be taxed. We note that allowable costs may include, if appropriate, expenses paid or incurred by a party in the defense or prosecution of an action “regardless of whether they were paid to the trial court clerk.” Honeycutt v. Sherman, 806 So.2d 401, 403 (Ala.Civ.App.2001).

We agree with Jamie and Rex’s estate that, pursuant to § 43-2-354, James and Neita’s estate should have been taxed with the costs of the proceedings. The plain language of § 43-2-354 clearly states that in the event a claimant “shall fail to recover upon the disputed ... claim, he shall be taxed with the costs” of the proceedings. “The word ‘shall’ is clear and unambiguous and imperative and mandatory.” Ex parte Prudential Ins. Co. of America, 721 So.2d 1135, 1138 (Ala.1998). “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.” IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992).

In this instance, James and Neita’s estate failed to recover on their disputed claims against Jamie and Rex’s estate. Accordingly, we hold that, pursuant to § 43-2-354, the trial court erred in failing to tax costs against James and Neita’s estate.

However, we hold that attorney’s fees cannot be awarded as a part of the costs sought in this case. As stated, the request for costs to be taxed against James and Neita’s estate was made pursuant to § 43-2-354; that statutory provision does not include attorney’s fees as costs that may be taxed. “The general rule, as adopted in this State by the Supreme Court in Low v. Low, 255 Ala. 536, 52 So.2d 218 [ (1951) ], is that attorney’s fees are not allowed as a part of the costs of a proceeding unless so provided by contract, statute or recognized ground of equity.” Hogan v. State ex rel. Van Antwerp, 46 Ala.App. 240, 243, 240 So.2d 227, 229 (Ala.Civ.App.1970). We find that none of the exceptions apply in this case, and we decline to extend the holding in Hart v. Jackson, 607 So.2d 161 (Ala.1992), permitting attorney’s fees to be awarded pursuant to § 43-8-196, to § 43-2-354. Therefore, that portion of the judgment excluding the payment of attorney’s fees as part of the costs of the proceedings is affirmed. However, we reverse the judgment as to the taxation of other costs, and we remand this cause for the trial court to enter a judgment consistent with this opinion.

2120612: APPEAL — AFFIRMED; CROSS-APPEAL — AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

PITTMAN, THOMAS, MOORE, and DONALDSON, JJ., concur.

THOMPSON, P.J.,

concurs as to the appeal and concurs in part and concurs in the result in part as to the cross-appeal, with writing.

2120613: APPEAL — AFFIRMED; CROSS-APPEAL — AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

PITTMAN, THOMAS, MOORE, and DONALDSON, JJ., concur.

THOMPSON, P.J., concurs as to the appeal and concurs in part and concurs in the result in part as to the cross-appeal, with writing.

THOMPSON, Presiding Judge,

concurring as to the appeals and concurring in part and concurring in the result in part as to the cross-appeals. I concur in all aspects of the main opinion except that portion addressing the claim in the cross-appeals brought by Jamie Keeling (“Jamie”), individually and as personal representative of the estate of Rex George Keeling (“Rex’s estate”), for attorney’s fees to be included as part of the costs to be taxed against James W. Keeling (“James”), individually and as personal representative of the estate of Neita B. Keeling (“Neita’s estate”), in which I concur in the result.

In this instance, James and Neita’s estate failed to recover on their disputed claims against Jamie and Rex’s estate, and I agree with the holding in the main opinion that the trial court erred in failing to tax costs to James and Neita’s estate pursuant to § 43-2-354, Ala.Code 1975. I do not believe that attorney’s fees should be included as part of the costs to be taxed to James and Neita’s estate under the particular facts of this case for the following reasons.

Generally, “[ujnder Alabama law, costs do not include attorney fees.” Ex parte Habeb, 100 So.3d 1086, 1089 (Ala.Civ.App.2012). “The general rule ... is that attorney’s fees are not allowed as part of the costs of a proceeding unless so provided by contract, statute or recognized ground of equity.” Hogan v. State ex rel. Van Antwerp, 46 Ala.App. 240, 243, 240 So.2d 227, 229 (Aa.Civ.App.1970). “Generally, attorney fees are not recoverable as part of the costs.” Opinion of the Clerk No. 5, 347 So.2d 525, 527 (Ala.1977). “An exception is where the statute expressly authorizes the court ‘to tax as part of the costs in such suit or proceeding such reasonable attorney’s fee’....” Id.

In this case, however, I do not believe that it is necessary for this court to reach Jamie and Rex’s estate’s argument that § 43-2-354 should be construed to include the payment of attorney’s fees as part of the taxing of costs, because I believe that, under the facts of this particular case, Jamie and Rex’s estate failed to properly preserve this issue for appellate review. Jamie and Rex’s estate failed to submit any evidence to the trial court as to the amount of attorney’s fees or to request an evidentiary hearing on the issue. Jamie and Rex’s estate did not specify the amount of the requested attorney’s fees in their motion (and renewed motion) for costs. They failed to submit any evidence or to make an offer of proof regarding the amount of attorney’s fees they claimed should have been taxed as part of the costs of the proceedings. An appellate court is bound by the record. Ex parte Pike Fabrication, Inc., 859 So.2d at 1089, 1091 (Ala.2002). An appellant’s failure to make an offer of proof in the trial court relating to excluded evidence precludes appellate review of the trial court’s refusal to allow such evidence. Thompson v. Patton, 6 So.3d 1129, 1138 (Ala.2008); Burkett v. American Gen. Fin., Inc., 607 So.2d 138, 139-40 (Ala.1992).

Jamie and Rex’s estate presented only legal arguments to the trial court in support of their assertion that costs under § 43-2-354 should be construed to include the payment of attorney’s fees; they did not attempt to introduce any evidence as to this issue. Because attorney’s fees generally are not included as part of costs, I would hold that Jamie and Rex’s estate should have specified the amount of the requested attorney’s fees in their motion (and renewed motion) for costs, with supporting evidence, or, at a minimum, they should have requested an evidentiary hearing on the issue. Based on the foregoing, I would hold that this issue has not been preserved for appellate review. Because I believe that this issue has not been properly preserved for our review, I express no opinion as to the issue whether the payment of attorney’s fees should be included as part of the costs recoverable under § 43-2-354 when a claimant fails to recover on a disputed claim filed against an estate.

In all other aspects, I concur in the main opinion.

      . In the verified claim, Neita’s estate described the allegedly converted property as having been "converted and misappropriated, intentionally and/or unintentionally or by misrepresentation and/or fraud.”

      . In the complaint, James and Neita’s estate described the alleged conversion as "misrepresentations and/or fraudulent conversion” and described the allegedly converted property as having been "converted and misappropriated, intentionally and/or unintentionally or by misrepresentations and/or fraud.”

      . Rex’s April 14, 2004, handwritten memorandum reads:
      "Hey James, Via your comment to lawyer Jack 'he is up to something,' not so! Just had enough; you win\\\, Good going\\\ I’m serious ! You will receive the ‘estate stock' from stock co. Do what you want to do— gift tax — 'has no tax consequences ’ — -it is a 'gift tax ’ the dividends are not enough to bother a tax return.”

      . James and Neita's estate filed two separate appeals — one pertaining to the verified-claim action (appeal no. 2120612) and one pertaining to the other action (appeal no. 2120613).

      . Jamie and Rex’s estate filed two separate cross-appeals — one pertaining to the verified-claim action (appeal no. 2120612) and one pertaining to the other action (appeal no. 2120613).

      . Because we affirm the trial court's judgment based on James and Neita’s estate's waiver of any argument as to the propriety of the underlying independent causes of action to support the constructive-trust remedy, we decline to address Jamie and Rex's estate’s other arguments in support of an affirmance of the trial court’s judgment.

      . We are reversing that portion of the judgment and remanding the case so that proceedings may be conducted to identify and tax costs against James and Neita’s estate. As noted, allowable costs may include, if appropriate, expenses paid or incurred by a party in the defense or prosecution of an action “regardless of whether they were paid to the trial court clerk.” Honeycutt v. Sherman, 806 So.2d at 403. Thus, Jamie and Rex’s estate will be permitted to submit evidence after remand of the type and amount of costs sought, including, if applicable, items not contained within the trial court's file.

      . I also note that, in their reply brief, Jamie and Rex's estate argue that,
      "unlike a trial court’s erroneous refusal to admit evidence regarding a claim that is still open for determination by the trier of fact, which requires a proffer to preserve, when a trial court erroneously denies a claim for attorneys’ fees, on appeal the appellate court should remand for the trial court to receive evidence as to a reasonable attorneys’ fee.”
      In support of this argument, they cite CH2M Hill Southeast, Inc. v. Sanders Lead Co., 450 So.2d 450 (Ala.1984), in which our supreme court, after noting that the contract at issue called for the losing party to pay reasonable attorney’s fees and further noting that it was unclear from the record exactly what had transpired regarding this matter, ”remand[ed] for a hearing to receive evidence as to a reasonable fee for plaintiff's attorney.” Id. at 451.
      However, assuming without deciding that CH2M Hill is applicable to the facts of this case, I believe that the citation to that case comes too late because it was cited for the first time in Jamie and Rex’s estate’s reply brief. Rule 28(a)(10), Ala. R.App. P., requires compliance with the rule in an appellant’s initial brief, and arguments made for the first time in the reply brief are not to be addressed by the appellate courts. See Meigs v. Estate of Mobley, 134 So.3d 878, 889 n. 6 (Ala.Civ.App.2013) (citing Huntley v. Regions Bank, 807 So.2d 512, 516 n. 2 (Ala.2001)); see also L.J.K. v. State, 942 So.2d 854, 868-69 (Ala.Crim.App.2005) (Rule 28(a)(10) requires citations to legal authority and specific allegations relating to ineffective assistance of counsel to be made in the appellant’s initial brief; such citations and specific allegations may not be included for first time in the reply brief).


source: Caselaw Access Project

license: Public Domain

text:
    Paul Augustus HOWELL, Appellant(s) v. STATE of Florida, Appelle(s).
    No. SC13-303.
    Supreme Court of Florida.
    Feb. 25, 2013.
   Paul Augustus Howell, a prisoner under sentence of death and under an active death warrant, appeals the summary denial of a second successive motion for post-conviction relief filed on February 21, 2013, just three days after this Court affirmed the denial of his prior successive motion for postconviction relief. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. The Court expedited the briefing and after reviewing the motion, the briefs, and the entire history of this case, we affirm the trial court’s summary denial.

In the second successive motion for postconviction relief, Howell raised the following claims: (1) trial counsel was ineffective in failing to investigate and present mitigating evidence; (2) trial counsel’s conflict of interest led to a structural deprivation of Howell’s right to counsel; (3) a structural deprivation of counsel occurred based on the trial court’s failure to adequately fund Howell’s defense; (4) newly discovered evidence of mitigation could have saved Howell’s life; and (5) his execution would violate the Eighth Amendment. The trial court summarily denied the second successive motion for postconviction relief.

We affirm the summary denial of Howell’s second successive motion for postconviction relief as procedurally barred and without merit. Because the motion was filed beyond the time limitation provided in Florida Rule of Criminal Procedure 3.851(d)(1), the motion must rely upon one of the enumerated exceptions listed in subsection (d)(2). Here, Howell asserts that his second successive posteon-viction motion may be considered because “the facts on which the claim is predicated were unknown to the movant or the mov-ant’s attorney and could not have been ascertained by the exercise of due diligence.” Fla. R.Crim. P. 3.851(d)(2)(A). After thoroughly reviewing the second successive motion filed before the trial court, we hold that this exception does not apply. Howell fails to demonstrate how any of the above facts could not have been discovered with due diligence. All of the allegations regarding information about Howell’s background have been in the possession of either Howell or his family, or in his records. To the extent that Howell has now obtained another expert, merely obtaining a new expert cannot be the basis for a newly discovered evidence claim. To the extent Howell claims that there are new studies or tests available, this Court has rejected that type of evidence as newly discovered. See Schwab v. State, 969 So.2d 318, 325 (Fla.2007) (“[T]his Court has not recognized ‘new opinions’ or ‘new research studies’ as newly discovered evidence.”). Further, this Court has just rejected as barred Howell’s attempt to raise the mitigation claim. Howell v. State, 109 So.3d 763 (Fla.2013).

Howell also asserts that his second successive postconviction motion may be considered because “postconviction counsel, through neglect, failed to file the motion.” Fla. R.Crim. P. 3.851(d)(2)(C). Howell recognizes that, here, initial post-conviction counsel sought an extension beyond the one-year deadline and then filed a motion for postconviction relief within the time period that this Court granted. However, according to Howell, this exception can still apply because postconviction counsel failed to raise these specific claims. This argument is contrary to the express terms of the rule itself, which applies based on the inaction of counsel to file a timely motion for postconviction relief, not to file a specific claim. Moreover, under Howell’s interpretation, a condemned inmate would never face any time limitation in which to file a motion for postconviction relief, because the inmate could always assert that postconviction counsel neglected to raise a claim.

Accordingly, we hold that none of the exceptions relied upon by Howell apply to this second successive postconviction motion. We affirm the denial of relief.

No rehearing will be entertained by this Court.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Louis Randolf TOWNSEND, Jr., Respondent.
    No. SC11-2286.
    Supreme Court of Florida.
    April 24, 2014.
    Rehearing Denied Sept. 3, 2014.

      John F. Harkness, Jr., Executive Director, and Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, Tallahassee, FL, and Michael C. Greenberg, Bar Counsel, The Florida Bar, Sunrise, FL, for Complainant.
    Andrew DeGraffenreidt, III, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report recommending that Respondent Louis Randolf Townsend, Jr., not be held in contempt of this Court’s January 17, 2008, suspension order in Florida Bar v. Townsend, case number SC07-81. We have jurisdiction. See art. V, § 15, Fla. Const. As discussed in this opinion, we disapprove the referee’s recommendation in part, and hold Townsend in contempt based on his failure to notify the circuit court of his thirty-day suspension in ease number SC07-81, in violation of Rule Regulating the Florida Bar 3-5.1(h). We also conclude that Townsend made misrepresentations of fact to the circuit court in his 2006 “Application for Appointment As Guardian,” in violation of Bar Rules 4-3.3(a)(l) (a lawyer shall not knowingly make a false statement of fact or law to a tribunal); 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice). Because the referee did not reach the issue of discipline, we remand this case to the referee for a hearing and a recommendation as to the appropriate sanction.

FACTS

On January 17, 2008, this Court entered an order in Florida Bar v. Townsend, case number SC07-81, suspending Respondent Townsend from the practice of law for thirty days. Townsend was required to comply with Rule Regulating the Florida Bar 3-5.1(h), which provides:

Upon service on the respondent of an order of disbarment, disbarment on consent, disciplinary revocation, suspension, emergency suspension, emergency probation, or placement on the inactive list for incapacity not related to misconduct, the respondent shall, unless this requirement is waived or modified in the court’s order, forthwith furnish a copy of the order to: (1) all of the respondent’s clients with matters pending in the respondent’s practice; (2) all opposing counsel or co-counsel in the matters listed in (1), above; and (3) all courts, tribunals, or adjudicative agencies before which the respondent is counsel of record.
Within 30 days after service of the order the respondent shall furnish bar counsel with a sworn affidavit listing the names and addresses of all persons and entities that have been furnished copies of the order.

As discussed below, Townsend’s suspension was made effective nunc pro tunc, December 10, 2007. See Fla. Bar v. Townsend, No. SC07-81 (Fla. order on rehearing entered Feb. 6, 2008). Thus, Townsend served his suspension and was automatically reinstated in January 2008.

In November 2011, The Florida Bar (Bar) filed a Petition for Contempt and Order to Show Cause, alleging that Townsend violated the Court’s January 2008 suspension order; the Bar later filed an amended petition, adding an additional count, in October 2012. A referee was appointed to consider the matter. Following a hearing on the amended petition, the referee has submitted his report for the Court’s review, in which he makes the following findings and recommendations.

The sequence of events in case number SC07-81 plays a significant role in the contempt case at issue here. In January 2007, the Bar filed its complaint in SC07-81. Several months later, in November 2007, Townsend and the Bar agreed to a Conditional Guilty Plea for Consent Judgment. In the Consent Judgment, Townsend admitted to violations of the Rules Regulating the Florida Bar (Bar Rules), related to his representation of two clients outside his law firm. Townsend and the Bar agreed to a thirty-day suspension, set to begin December 10, 2007.

In November 2007, the referee filed a report recommending that the Court approve the consent judgment. While the case was pending before the Court, on December 10, Townsend’s agreed-upon thirty-day suspension began to run. Subsequently, on January 17, 2008, the Court issued its order approving the referee’s report and suspending Townsend for thirty days. Townsend filed a motion for rehearing, asking the Court to make his thirty-day suspension effective nunc pro tunc, December 10, 2007, as agreed to in the Consent Judgment. On February 6, 2008, the Court entered an order granting the motion.

Following the Court’s order, on March 19, 2008, Townsend sent an affidavit to the Bar pursuant to rule 3-5.1(h), in which he stated:

In living up to my agreement in the Consent Judgment, I closed my office on December 10, 2007 for thirty (30) days by closing all inactive files and transferring all active litigation files to another attorney to handle during the thirty (30) day suspension period, including the cases pending in state and federal court. These actions were all taken prior to the entry of the Court order by the Supreme Court which was effective nunc pro tunc, December 10, 2007.

The Bar did not raise any objection to Townsend’s affidavit at that time.

Turning to the instant contempt case, the Bar’s amended petition for contempt raised three issues. First, the Bar alleged that Townsend violated the Court’s January 2008 suspension order because he did not propei’ly notify his clients of his suspension, in violation of Bar Rule 3-5.1(h). Specifically, the Bar alleged that Townsend’s act of transferring his active cases to another attorney prior to serving his suspension, and prior to the Court’s order actually imposing the suspension, did not relieve him of the requirement under the rule to provide notice of the suspension to his clients. However, the referee found that the “triggering date” for determining which clients, attorneys, and courts must be notified is the date the suspension order is served on the attorney. In this instance, Townsend’s thirty-day suspension ran from December 10, 2007, to January 9, 2008; the Court’s order approving the suspension was entered on January 17, 2008. Thus, the referee concluded that the triggering date for Townsend to comply with rule 3-5.1(h) came on January 17, after the suspension was completed. Because the referee found that, in this particular case, Bar Rule 3 — 5.1(h) is subject to “different, confusing, and contradictory readings,” the referee concluded that the rule cannot be read so as to sustain a disciplinary action against an attorney. Additionally, the referee also noted that, in anticipation of his suspension, Townsend transferred his active cases to another lawyer. Thus, the referee found that Townsend’s May 2008 affidavit of compliance was truthful, and did not make any misrepresentations to the Bar as to how Townsend complied with the suspension order. Accordingly, the referee recommends that Townsend be found not guilty of contempt on this ground.

As to the second issue alleged in its amended petition for contempt, the Bar asserted that Townsend violated the Court’s January 2008 suspension order because he failed to notify a court of his thirty-day suspension, in violation of Bar Rule 3 — 5.1(h). In 2006, Townsend was appointed by a circuit court to serve as the guardian for an incapacitated person (the ward); at the time of the Court’s January 2008 order in SC07-81, Townsend continued to serve in that role. There is no dispute that Townsend did not provide the guardianship court notice of the thirty-day suspension. In 2011, the court learned on its own of Townsend’s suspension, and entered an order suspending Townsend as guardian for the ward.

The central question before the referee was whether Townsend was “counsel of record” in the guardianship case, and thus required to provide notice of his suspension to the court pursuant to rule 3 — 5.1(h). The referee noted that Townsend performed a number of légal tasks in the case that only a lawyer would be authorized to perform. Townsend also filed petitions for payment of attorney’s fees and billed his services as an attorney at a higher rate than the services he performed as guardian. However, the referee found that, although Townsend took an oath as guardian and was issued “letters of guardianship,” he did not file a notice of appearance as counsel of record. The referee concluded that Bar Rule 3 — 5.1(h) does not specifically address the notification required in this case. Thus, he recommends that Townsend be found not guilty of contempt.

Finally, the Bar’s amended petition for contempt asserted that Townsend made misrepresentations of fact to the guardianship court. In 2006, Townsend submitted an “Application for Appointment As Guardian” in the guardianship case. Question 29 on the application asked: “Has applicant ever been discharged from employment?” Townsend answered the question “No,” and provided a comment indicating that he was “let go” from his former law firm because the malpractice case he was working on settled. Further, in question 28 on the application, Townsend indicated that he left his former firm because he started a new job. In fact, Townsend was discharged from his former law firm for representing clients outside the firm (the basis for the disciplinary case in SC07-81). The referee found that Townsend’s answers on the guardianship application were a “knowing and material and intentional misrepresentation” of fact. Nonetheless, the referee concluded that the question before him was solely whether Townsend should be held in contempt of the Court’s January 2008 suspension order. Because Townsend’s guardianship application was submitted in 2006, two years before the Court’s January 2008 order in case number SC07-81, the referee determined that Townsend’s answers on the application could not be a basis for holding him in contempt of the order.

Ultimately, based on these factual findings, the referee recommends that Townsend be found not guilty of contempt, and that no discipline be imposed. The Bar has filed a Notice of Intent to Seek Review of Report of Referee, challenging the referee’s recommendation that Townsend be found not guilty of contempt based on his failure to notify the guardianship court of his suspension, as well as the referee’s recommendation that Townsend be found not guilty of additional rule violations based on his misrepresentations of fact to the guardianship court.

ANALYSIS

The Rules Regulating the Florida Bar authorize this Court to review petitions for contempt filed by the Bar, and any response from the respondent, and issue an appropriate judgment. See R. Regulating Fla. Bar 3-7.11(f)(l)(F). The judgment may include “any sanction that a court may impose for contempt and, if the person found in contempt is a member of The Florida Bar, may include any disciplinary sanction authorized under these rules.” Id. “Proceedings for contempt referred to a referee shall be processed in the same manner as disciplinary proceedings under these rules.” Id. Thus, in reviewing the referee’s recommendations as to Townsend’s guilt, we must determine whether the referee’s factual findings are sufficient under the applicable rules to support the recommendation. See Fla. Bar v. Shoureas, 913 So.2d 554, 557-558 (Fla.2005).

First, before this Court the Bar does not challenge the referee’s recommendation that Townsend be found not guilty of contempt based on the Bar’s allegation that he failed to notify clients of his suspension, in violation of Bar Rule 3-5.1(h). Although we approve the referee’s recommendation on this issue, we refer to The Florida Bar the issue of whether amendments to rule 3-5.1 (h) are necessary to address the situation presented here, where an attorney begins serving his or her suspension (or other discipline) before the Court’s order imposing the discipline is entered (thus triggering the obligation to notify clients under the rule).

The Bar does urge the Court to disapprove the referee’s recommendation that Townsend be found not guilty of contempt based on his failure to notify the guardianship court of his suspension. Rule 3-5.1(h) provides, in relevant part, that when an attorney is served with an order of suspension, the attorney must furnish a copy of the order to “all courts, tribunals, or adjudicative agencies before which the respondent is counsel of record.” R. Regulating Fla. Bar 3 — 5.1(h)(3). It is not disputed that Townsend did not notify the guardianship court of the Court’s January 2008 order in SC07-81, suspending him for thirty days. Nonetheless, the referee concluded that Townsend was not required to notify the court because he was not counsel of record. We disagree; for all practical purposes, Townsend was the attorney in the case. Pursuant to Florida Probate Rule 5.030, every guardian must be represented by an attorney admitted to practice in Florida; if the guardian is an attorney, he or she may represent himself or herself as the guardian. Here, Townsend did not hire a separate attorney to represent him as the guardian. Indeed, the former circuit court judge who presided in the guardianship case testified before the referee that he believed Townsend served as both the guardian and the attorney. Moreover, as noted, the referee found that Townsend performed a number of legal tasks in the case that only a lawyer would be authorized to perform. He also filed petitions for orders authorizing payment of attorney’s fees. Townsend billed for this legal work at a higher rate than he did for his services as the guardian.

Given these facts, Townsend’s argument that he was not the attorney in the guardianship case, and that he was not required to notify the guardianship court of his suspension, is unreasonable. It is apparent that Townsend was the attorney in the case, even if he never filed a formal notice of appearance. Accordingly, we conclude that Townsend was required to notify the guardianship court of his suspension in case number SC07-81, and he failed to do so. Thus, we hold Townsend in contempt.

The Bar next urges the Court to disapprove the referee’s recommendation that Townsend be found not guilty of any ethical misconduct based on his misrepresentations of fact on the guardianship application. As noted, in October 2006, Townsend submitted to the circuit court an “Application for Appointment as Guardian,” and he stated in the application that he had never been discharged from any employment. However, Townsend admitted in the proceedings before the referee that he was fired from his former law firm for representing clients outside the firm. Thus, the referee expressly found that Townsend’s answers on the guardianship application were a “knowing and material and intentional” misrepresentation of fact. However, the referee concluded that he was solely limited to determining whether Townsend’s actions are in contempt of the Court’s January 2008 suspension order. We do not agree, and conclude instead that the referee could have considered additional rule violations, as alleged and argued by the Bar, based on Townsend’s misconduct.

We have long held that due process is satisfied in a disciplinary proceeding “where the attorney is served with notice of the Bar’s charges and is afforded an opportunity in the disciplinary hearing to be heard and defend himself.” Fla. Bar v. Tipler, 8 So.3d 1109, 1118 (Fla.2009) (citing Fla. Bar v. Committe, 916 So.2d 741, 745 (Fla.2005)). Moreover, this Court has held that a referee may consider instances of misconduct not specifically pled in the Bar’s complaint if such misconduct is “within the scope of the Bar’s accusations” and the attorney was “clearly notified of the nature and extent of the charges pending against [him or her].” Fla. Bar v. Nowacki, 697 So.2d 828, 832 (Fla.1997); see also Fla. Bar v. Vaughn, 608 So.2d 18, 20 (Fla.1992) (finding the respondent guilty of a rule violation not specifically charged in the Bar’s complaint, where the complaint put the respondent on notice of the misconduct at issue).

Here, Townsend was notified of the nature and extent of the charges pending against him by the Bar’s amended petition for contempt. The amended petition specifically alleged that Townsend misrepresented facts on the guardianship application. Moreover, this issue was addressed in the proceedings before the referee. Indeed, as noted, the referee held that the Bar presented clear and convincing evidence to demonstrate that Townsend was guilty of misrepresentations to the court. Because Townsend was aware of the scope of the Bar’s allegations, he had notice of the accusations, and he was afforded an opportunity to defend against them, we conclude that due process is satisfied. We find that Townsend made misrepresentations of fact to the court in the guardianship case, in violation of Bar Rules 4-3.3(a)(1) (a lawyer shall not knowingly make a false statement of fact or law to a tribunal); and 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). Further, we find that, because Townsend’s misrepresentations misled the guardianship court, and eventually caused the court to suspend him as guardian for the ward and to appoint a new guardian, his conduct was prejudicial to the administration of justice in violation of Bar Rule 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice).

CONCLUSION

Accordingly, we approve the referee’s findings of fact set forth in the report of the referee, as well as the referee’s recommendation that Townsend be found not guilty of contempt based on the Bar’s allegation that he failed to notify clients of his suspension in violation of Bar Rule 3-5.1(h). However, we disapprove the referee’s recommendation that Townsend be found not guilty of contempt based on his failure to notify the guardianship court of his suspension, and instead hold Townsend in contempt of the Court’s January 2008 suspension order in case number SC07-81. We also find Townsend guilty of violating Bar Rules 4-8.3(a)(l), 4-8.4(c), and 4-8.4(d). Finally, because the referee did not reach the issue of discipline, we remand this case to the referee for a hearing and a recommendation as to the appropriate discipline.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.

      . The Bar also states that, in September 2012, it sent Townsend a Notice of Grievance Committee Review, alleging that Townsend's answers on the guardianship application may-have violated three Bar Rules: 4-3.3(a)(l) (a lawyer shall not knowingly make a false statement of fact or law to a tribunal): 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice). The Bar asserts that Townsend’s counsel waived a finding of probable cause, and consented to consolidation of the two matters within the already existing contempt petition.