author: THOMAS, Judge.

text:
    David CARROLL v. LJC DEFENSE CONTRACTING, INC., and Laura Johnston Clark.
    2070993.
    Court of Civil Appeals of Alabama.
    May 15, 2009.

      Angela J. Mason of Cochran, Cherry, Givens, Smith, Lane & Taylor, PC, Do-than, for appellant.
    Joe Espy III and J. Flynn Mozingo of Melton, Espy & Williams, PC, Montgomery, for appellees.
   THOMAS, Judge.

On March 9, 2005, David Carroll sued his former employer, LJC Defense Contracting, Inc. (“LJC”), and Laura Johnston Clark, its president and sole shareholder, alleging breach-of-contract, quantum me-ruit, unjust-enrichment, and promissory-fraud claims and seeking an accounting. On May 2, 2005, LJC and Clark answered and denied liability. Following discovery, LJC and Clark moved for a summary judgment on March 10, 2008, attaching depositions and other evidentiary materials in support of their motion. Carroll filed a response in opposition to the summary-judgment motion on May 8, 2008, also attaching depositions and other evi-dentiary materials in support of his response. On May 28, 2008, the trial court entered a summary judgment in favor of LJC and Clark on all claims.

Carroll timely appealed to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975. On appeal, Carroll argues that he presented substantial evidence creating a genuine issue of material fact with respect to his first four claims. He makes no argument with respect to the trial court’s denial of his request for an accounting.

Factual Background

Carroll is a roofing contractor. LJC is a general construction contractor whose principal place of business is in Dothan. By virtue of the fact that it is owned and operated by a woman, LJC is entitled to minority “set-aside” preferences pursuant to § 8(a) of the Small Business Act, see 15 U.S.C. § 637(a)(1994). In August 2003, LJC’s president, Clark, who was interested in expanding LJC’s construction-contracting opportunities beyond § 8(a) minority set-aside work, talked with Carroll about establishing a roofing division within LJC.

LJC’s construction projects had usually included roofing, but LJC had typically hired subcontractors to do the roofing installations. Clark spoke with Carroll about establishing an in-house roofing capability within LJC so that LJC could eliminate its reliance upon subcontractors for roofing work, reduce overhead, and thereby make a greater profit.

During their employment discussions, Carroll told Clark that he could generate for LJC roofing work valued from $1 million to $1.5 million per year. He informed Clark that he was

“able to be a project manager, which included finding work, bidding the work, doing quantitative take-offs, which is part of the bid process. Reading through specifications and interpreting specifications. Putting together a proposal package or a bid package, and then overseeing the job; materials, ordering, billing. [He said that he] could take a job from one end to the other.”

Clark testified that those capabilities were crucial to her. She told Carroll that she did not want him to use either subcontractors or LJC’s construction crew to do the roofing work he brought to LJC. Clark testified:

“[W]hen he came on if he was going to use a subcontractor, then we didn’t need David Carroll. ... We had good roofing subcontractors. The purpose for him to come on [was that roofing subcontractors] had thirty to forty percent overhead, and we were going to cut out that part and let him do it and have his own crews. But if we used subcontractors, then we didn’t need David Carroll. We were doing that anyway.”

Carroll assured Clark that he had his own roofing crew. Clark explained to Carroll that, if he were to be employed by LJC, his roofing work was to be a separate, self-sustaining enterprise, with Carroll’s bonus, if any, payable from the net profits the enterprise generated. Clark testified:

“I told him during [our employment discussions] ... that the definition of ‘brought in’ [was that] he was to bring in the work, bid the work, not use any LJC resources, and I stressed that repeatedly. He was to do all the submittals, billings, close-out documents, anything to take the job from start to finish.”

Carroll agreed that his job description was to

“locate projects, go through specifications, read and interpret specifications, put together [an] estimate for the solicitation, [and] bid the solicitation ... oversee the project to the end if [LJC] were awarded the job, which included material procurement, making sure labor force was there, and producing or billing any close-out documents.”

Carroll said that he and Clark did not discuss what would happen if he managed only part of a project, but he acknowledged that, in order to receive the profit-sharing that, he said, was promised him, he would be “personally responsible for everything from start to finish.” The parties agreed that Carroll’s employment would include a six-month probationary period, after which, if Carroll’s roofing operation were profitable, the parties would consider setting up a legal entity separate from LJC as the roofing component of the construction company.

Carroll explained to Clark that, although he was dissatisfied with his current employer, he was obligated to complete several projects for that employer and could not devote all his time to LJC for several months. In September 2003, Clark and Carroll entered into an oral employment agreement in the presence of Allan Buchanan, LJC’s vice president for operations. The parties agreed that LJC would employ Carroll at a weekly salary plus “25% of the net profits from the roofing work he brought in to LJC.”

In February 2004, Carroll informed Buchanan that he needed new tires for his truck. Questioning whether truck maintenance was included in Carroll’s employment agreement, Buchanan asked Carroll to write out his understanding of the employment agreement. Carroll wrote:

“Employment Agreement
“1) $750-/wk thru end of year ’03, 4 days /wk $900 @ ’04, 5 days/wk
“2) 1-1.5 million/yr annual sales
“3) Trial pd.= 6 months — reevaluate @ 6 mo. period
“4) 25% of net profit to be given as bonus
“5) [Overhead] not discussed in detail, but general idea was ask [clerical staff] their time required, with set monthly ‘fee.’
“6) Truck would be discussed @ later time.”

Upon seeing what Carroll wrote, Buchanan acknowledged that his recollection of the agreement was the same as Carroll’s.

Clark met with Carroll at the end of his six-month probationary period in March 2004, and she expressed her dissatisfaction with Carroll’s performance. Clark explained that, instead of using his own crews to perform the work, Carroll was employing labor subcontractors, some of whom did not show up for work and many of whom did not have workers’ compensation insurance, which, Clark said, was against LJC policy. Clark told Carroll she was concerned that he was “messing up LJC’s good name.” Claiming that the projects he was managing had not progressed far enough to be properly evaluated, Carroll asked Clark to give him a chance to prove himself. Clark agreed to extend Carroll’s probationary period until December 2004.

The parties differed with respect to whether their oral agreement contemplated that Carroll would be able earn the 25% profit-sharing bonus during his six-month probationary period. Clark testified that she understood the agreement to be that Carroll would be entitled to no profit sharing until the six-month probationary period had ended and the parties had formed the separate legal entity that they had discussed. Carroll stated that he understood he would receive 25% of the net profit from whatever roofing work he brought to LJC, even during the six-month probationary period and irrespective of whether the parties ever formed a separate legal entity.

Carroll testified that in the year following his being hired by LJC he had generated and managed approximately $1.5 million in roofing work for LJC, consisting of projects at Fort Rucker, Maxwell Air Force Base, and two secondary schools in Florida. Carroll was not paid, and he has not sought in the lawsuit that is the subject of this appeal, a bonus for those projects. Documentary evidence submitted in support of LJC and Clark’s summary-judgment motion indicated that LJC suffered a net loss on those projects.

The parties’ main disagreement centers on whether Carroll’s employment agreement included 25% profit sharing only for “permanent” roofing installations or whether it also included 25% profit sharing on “temporary” roofing installations. Specifically, the parties disagree about whether Carroll is entitled to share in the approximately $40 million profit that LJC realized from “Operation Blue Roof,” the Federal Emergency Management Agency (“FEMA”) response to four hurricanes— Charley, Frances, Ivan, and Jeanne — that struck Florida and the Gulf Coast in rapid succession during the late summer and fall of 2004.

Following each of the four hurricanes, the United States Army Corps of Engineers solicited contractors’ bids for installation of temporary blue plastic sheeting on homes and other structures that sustained roof damage during the storm. After Hurricane Charley struck the west coast of Florida in August 2004, Allan Buchanan was browsing federal construction-contract opportunities on the Internet when he came across a solicitation for bids on emergency roof repairs in the aftermath of the hurricane. He passed the solicitation on to Carroll, suggesting that it might be a good opportunity for LJC. Carroll reviewed the solicitation and determined that LJC should bid on the project. Soon thereafter, the entire LJC management team began formulating a bid and they arrived at a bid of $.27 per square foot. LJC was the low bidder and was awarded the contract for the roofing work incident to Hurricane Charley.

When LJC personnel arrived at the site of the destruction in Punta Gorda, Florida, however, it soon became apparent that the bid was too low and LJC would lose money on the contract. Initially, Clark sent Carroll to Florida to be the project manager for the Hurricane Charley roof repairs, but she later asked Buchanan to take over as the project manager because, she said, “I felt like Allan [Buchanan] was the only one at that time that could go down and manage that project at twenty-seven cents, and make it where my company didn’t go under.” Carroll testified that Clark told him she was giving the project to Buchanan because he was the one who had “found” the project. Ultimately, the Corps of Engineers recognized the logistical difficulties inherent in performing the contract at $.27 per square foot and established a new contract price of $1.99 per square foot, a price at which LJC made a substantial profit.

LJC was also awarded blue-roof contracts following Hurricanes Frances, Ivan, and Jeanne. Carroll testified that, after those three hurricanes, he was the one who had located the bid solicitations for emergency roofing repairs, and he assumed that the roofing projects incident to those hurricanes would be “his” because he had found them. Instead, Clark named Buchanan the project manager for Hurricanes Frances and Jeanne. Clark asked Carroll to be the project manager for Hurricane Ivan, offering to double his weekly salary and to pay him a management fee of $25,000. Carroll accepted the offer, and the parties reduced their agreement to the following writing signed by Carroll and Clark:

“Management Agreement
“I, David Carroll, agree to accept a management fee of $25,000.00 less taxes for the temporary roof repairs of Hurricane Ivan contracted through LJC Defense Contracting.”

The evidence was undisputed that the blue-roof contracts presented LJC with enormous logistical challenges, which included amassing, upon very short notice, the tools, materials, and workers needed to make temporary roof repairs to thousands of homes in areas without electrical power, food, water, and housing for laborers. For example, LJC was required to begin work in Punta Gorda, Florida, within 24 hours of being notified that it was the low bidder for the blue-roof contract after Hurricane Charley. For Hurricanes Frances, Ivan, and Jeanne — the three hurricanes that struck in September 2004 — LJC was awarded blue-roof contracts for approximately 25,000 homes in 3 different geographical areas.

The evidence was also undisputed that, for each hurricane blue-roof project, LJC’s response — formulating its bid, locating tools and equipment, mobilizing a work force, arranging food and housing for laborers, obtaining rights-of-entry from property owners, overseeing all the work, and communicating with the Corps of Engineers — was a massive undertaking requiring a group effort by all LJC’s management personnel, which, in addition to Carroll, included Laura Clark, her husband Colby Clark, vice president Buchanan, senior project manager Gene Oden, field-operations manager Andy Nelson, and logistics manager Gerald Morris.

Carroll admits that he did not find, generate, or “bring in” to LJC the Hurricane Charley blue-roof project. He claims, however, that he obtained the blue-roof projects incident to Hurricanes Frances, Ivan, and Jeanne by locating the solicitations for bids on the Internet. He also claims that he substantially performed his contractual obligations with respect to managing those projects so as to entitle him to a 25% share of the profits. Carroll testified that in January 2005, he asked Clark when they were going to be able to “sit down and come to some agreement about the [profit-sharing] agreement that [they] had in place as far as storm work and work over the previous year.” Clark stated that, “as far as she was concerned it had already been taken care of by a manager’s-fee agreement that Carroll had signed to go to Pensacola [to manage the Hurricane Ivan project].”

Standard of Review

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 § 12-21-12(d), Ala.Code 1975.

The Contract Claim

The elements of a valid contract are “ ‘an offer and an acceptance, consideration, and mutual assent to terms essential to the formation of a contract.’ ” Ex parte Grant, 711 So.2d 464, 465 (Ala.1997) (quoting Strength v. Alabama Dep’t of Fin., Div. of Risk Mgmt., 622 So.2d 1283, 1289 (Ala.1993)). LJC and Clark maintain that the emergency roof repairs that LJC made to hurricane-damaged structures were temporary, as opposed to permanent, roofing installations and that the parties intended for Carroll to share only in the profits of permanent roofing installations. Carroll, on the other hand, argues that the contract was ambiguous with respect to the meaning of the term “roofing work.” He maintains that he presented substantial evidence creating a genuine issue of material fact as to whether the parties intended to include temporary roofing installations in their oral agreement concerning his sharing in the profit of “roofing work.” Accordingly, Carroll contends that the trial court erred by entering a summary judgment in favor of LJC and Clark because, he says, the meaning of the term “roofing work” is a jury question.

Whether a contract is ambiguous is a question of law for the trial court to decide, a decision that we review de novo. See FabArc Steel Supply, Inc. v. Composite Constr. Sys., Inc., 914 So.2d 344, 357 (Ala.2005). A contract is ambiguous if it is “reasonably susceptible of more than one meaning.” Id. “Roofing work” is a general term that includes the specific subcategories of “permanent” roofing work and “temporary” roofing work, and it is, arguably, ambiguous by virtue of its failure to specify the category or categories to which it refers. Compare American Indem. Co. v. Davis, 260 F.2d 440, 442 (5th Cir.1958) (in determining whether joint ownership of an automobile by insured and his son qualified as “ownership” within automobile liability insurance policy, the court held that the term “ownership” was ambiguous because “ ‘ownership’ in its literal sense includes joint as well as sole ‘belonging,’ [and] the use of the more general term ‘ownership’ comprehends the qualified terms ‘sole’ and ‘joint’ ownership”).

Carroll may be correct, therefore, that the contract is ambiguous because the term “roofing work” is reasonably susceptible of more than one meaning, but he is mistaken in assuming that, when a court determines that a contract is ambiguous, it is then up to the finder of fact to resolve the ambiguity. See Extermitech, Inc. v. Glasscock, Inc., 951 So.2d 689, 694-95 (Ala.2006). Instead, the trial court, in determining the meaning of the contract, first “ ‘ “must employ established rules of contract construction to resolve the ambiguity.” ’ ” Id. at 694 (quoting Alfa Life Ins. Corp. v. Johnson, 822 So.2d 400, 405 (Ala.2001), quoting in turn Voyager Life Ins. Co. v. Whitson, 703 So.2d 944, 948 (Ala.1997)) (emphasis omitted). See also FabArc Steel Supply, 914 So.2d at 358; Vesta Fire Ins. Corp. v. Liberty Nat’l Life Ins. Co., 893 So.2d 395, 403-04 (Ala.Civ.App.2003). If, after applying established rules of contract construction, the trial court is unable to resolve the ambiguity and factual issues arise, only then does “the resolution of the ambiguity become[ ] a task for the jury.” Vesta Fire Ins. Corp. v. Liberty Nat’l Life Ins. Co., 893 So.2d at 404 (quoting Alfa Life Ins. Corp. v. Johnson, 822 So.2d at 405) (emphasis added).

Alabama courts have consistently held that if factual disputes arise with respect to matters such as

“[the] facts and circumstances leading up to and attending [the] execution [of the contract], [the] relation and condition of [the] parties, [the] nature and situation of [the] subject matter, and [the] apparent purpose of making the contract,”

then such disputes should be resolved by the finder of fact. Pacific Ins. Co. v. Wilbanks, 283 Ala. 1, 5, 214 So.2d 279, 283 (1968). If, however, there is no dispute concerning such factual questions, then the trial court should determine the meaning of the contract in light of the undisputed facts. See Flagg-Utica Corp. v. City of Florence, 275 Ala. 475, 480, 156 So.2d 338, 342 (1963).

In the present case, the undisputed facts indicate that the parties mutually assented to the following essential contract terms: that Clark would employ Carroll to establish a separate, self-sufficient roofing division of LJC; that Carroll’s job would be to find, bid, manage, oversee, and bill for the roofing work he generated without using LJC labor or management resources; that Carroll would be “personally responsible for everything [on the roofing projects he brought to LJC] from start to finish”; that Carroll would be paid a weekly salary; and that if Carroll’s roofing projects were profitable, he would receive 25% of the net profits from the projects as a bonus.

Because the parties’ contract was made one year before the first of four hurricanes struck and bids were solicited on the blue-roof projects, and because none of the parties had ever worked on a blue-roof project before, the parties undoubtedly did not contemplate the blue-roof hurricane roofing contracts that LJC was awarded one year later. Alabama caselaw indicates that courts “will not stretch the language of a contract to apply to matters that were not contemplated by the parties when they entered the contract.” Koullas v. Ramsey, 683 So.2d 415, 417 (Ala.1996) (citing Seaboard Coast Line R.R. v. Trailer Train Co., 690 F.2d 1343 (11th Cir.1982)). Despite the parties’ having couched their disagreement about the meaning of “roofing work” in terms of the distinction between “permanent” roofing projects and “temporary” roofing projects, the trial court was authorized to determine that what made the blue-roof projects beyond the contemplation of the parties— and therefore not a matter to which they mutually assented that Carroll should receive a 25% share of the profits — was the size and scope of the projects, not the classification of the roofing work as “temporary.”

The evidentiary material in the record before us includes the depositions of Carroll, Laura Clark, Colby Clark, Buchanan, Oden, and Morris, all of whom agreed that the blue-roof projects were massive undertakings that presented enormous logistical challenges, that involved dozens of subcontractors, that were not overseen “from beginning to end” by any one person, and that required a joint effort by all LJC’s management team. In contrast, Carroll acknowledged in deposition testimony that his employment contract dictated that, in order to receive the profit-sharing that, he said, was promised him, he would be have to “bring in” or locate the project and be solely responsible for “everything from start to finish.” The facts and circumstances leading up to and attending the execution of Carroll’s employment agreement demonstrate that the parties intended that Carroll would be hired to manage án autonomous, self-sustaining roofing division of LJC — an in-house operation that would neither rely on roofing subcontractors nor use other LJC personnel and resources. However, LJC’s performance of the blue-roof contracts required, of necessity, the employment of numerous subcontractors, the use of LJC resources, and reliance on the skills of all its management personnel. Carroll admitted as much when he testified:

“There’s no way that one person, at least up front, can do everything that’s got to be done. Somebody has to be able to help them. And I realize that. When you get involved in — especially in this kind of storm work, catastrophic storm work, it’s not a one- or a two- or a three- or a five-man job, even from a logistical standpoint.”

A trial court may consider the parties’ dealings after the making of a contract because the dealings “are important as going to show [the] construction [of the contract] by [the] parties themselves while friendly.” Flagg-Utica Corp. v. City of Florence, 275 Ala. at 480, 156 So.2d at 343 (citing McGowin Lumber & Export Co. v. Camp Lumber Co., 16 Ala.App. 283, 77 So. 433 (1917)). Carroll argues that Clark’s conduct during the Hurricane Charley project indicates that she recognized that the profit-sharing provision in his employment agreement encompassed the blue-roof projects. Carroll contends that Clark replaced him as the project manager for the Hurricane Charley project and substituted Allan Buchanan in that position because, he says, Clark realized that the project would be extremely profitable and Buchanan had only a 10%, rather than a 25%, profit-sharing agreement with LJC.

Clark refuted that version of the events, testifying that she designated Buchanan as the project manager before the Corps of Engineers raised the contract price to $1.99 per square foot and she recognized that the project would be profitable. Clark stated that when she offered Buchanan 10% of the Hurricane Charley profits she believed the project would probably result in a loss to LJC, but she thought Buchanan was the only one in the company with the experience and ability to manage the project at the initial $.27-per-square-foot bid. Her testimony is supported by evidence indicating that Buchanan’s qualifications were superior to Carroll’s, or to any other LJC employee’s. Buchanan has a college degree in building science, had been with LJC for five years and was vice president of the company, and had previously worked as a senior project manager for Harbert International Corporation. That said, the difference between Carroll’s version of the facts and Clark’s version of the facts would indicate that the trial court erred in entering a summary judgment in favor of LJC, at least with respect to the Hurricane Charley contract, but for Carroll’s admission that he was not entitled to the profit-sharing bonus on the Hurricane Charley project because he did not “find” the project.

LJC and Clark contend that the parties’ conduct during the performance of the hurricane projects indicates that there was no mutual assent to pay Carroll 25% of the blue-roof income. LJC and Clark point out that Carroll admitted in deposition testimony that, after he was “pulled off’ the Hurricane Charley project, he approached Clark and stated that he thought he was “entitled to two, three, or four percent” of the hurricane-project income. LJC and Clark also contend that Clark’s signing a written agreement to accept a double salary and a $25,000 management fee for the Hurricane Ivan project was inconsistent with the earlier oral agreement allegedly promising him 25% of the profits from that project. LJC and Clark assert either that the written agreement superseded the oral agreement, citing Cavalier Mfg., Inc. v. Clarke, 862 So.2d 634, 641 (Ala.2003) (stating that “[wjhen parties execute successive agreements and the ‘two agreements cover the same subject matter and include inconsistent terms, the later agreement supersedes the earlier agreement’ ” (quoting CMI Int'l, Inc. v. Intermet Int’l Corp., 251 Mich.App. 125, 130, 649 N.W.2d 808, 812 (2002))), or that Carroll understood when he signed the written agreement that his 25% profit-sharing agreement did not encompass the hurricane projects. We agree with LJC and Clark’s contentions regarding the management agreement Carroll signed in regard to the Hurricane Ivan project.

Carroll was the project manager only for Hurricane Ivan. With respect to the blue-roof projects incident to Hurricanes Frances and Jeanne, for which Buchanan was the project manager, Carroll’s participation was no greater than any one of several other LJC managers. Accordingly, because his 25% bonus was contingent upon his being “personally responsible for everything from start to finish,” his employment agreement did not encompass those projects.

The trial court did not state its reasons for entering a summary judgment in favor of LJC and Clark on the contract claim, but we conclude that the trial court correctly determined that LJC and Clark had met their burden of establishing that there was no genuine issue of material fact and that they were entitled to a judgment as a matter of law because Carroll’s profit-sharing agreement did not apply to the blue-roof hurricane projects.

The Fraud Claim

Carroll argues that Clark and LJC knowingly misrepresented to him that he would be paid a bonus amounting to 25% of the profits of the roofing work that he brought in to LJC. In Mantiply v. Mantiply, 951 So.2d 638, 653 (Ala.2006), the supreme court set out the requirements for proving promissory fraud:

“ ‘ “The elements of fraud are (1) a false representation (2) of a material existing fact (3) reasonably relied upon by the plaintiff (4) who suffered damage as a proximate consequence of the misrepresentation. To prevail on a promissory fraud claim such as that at issue here, that is, one based upon a promise to act or not to act in the future, two additional elements must be satisfied: (5) proof that at the time of the misrepresentation, the defendant had the intention not to perform the act promised, and (6) proof that the defendant had an intent to deceive.” ’
“Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1160 (Ala.2003) (quoting Padgett v. Hughes, 535 So.2d 140, 142 (Ala.1988)).”

Carroll has not sought a bonus for the non-hurricane roofing work he performed for LJC, and the evidence conclusively established that he is not entitled to a bonus for that work because the non-hurricane projects on which he worked resulted in a net loss to LJC. With respect to the hurricane blue-roof projects, Carroll did not present substantial evidence indicating that when the promises were made to him in 2003, and reiterated in early 2004-months before the hurricanes struck land, and FEMA and the Corps of Engineers established “Operation Blue Roof’ — that Clark and LJC intended to deceive him into believing that he would be paid a bonus for his work on the hurricane projects.

“ ‘Where the misrepresentation relates to some future event, it must be shown that the person making the representation intended not to do the act promised at the time the misrepresentation was made.’ ” Hillcrest Ctr., Inc. v. Rone, 711 So.2d 901, 906 (Ala.1997) (quoting Russellville Prod. Credit Ass’n v. Frost, 484 So.2d 1084, 1087 (Ala.1986)). As we have previously discussed, at the time they made the employment agreement containing Carroll’s profit-sharing bonus, none of the parties contemplated the blue-roof hurricane roofing contracts that LJC was awarded one year later. Not only would it have been impossible for Clark and LJC to have intentionally misrepresented to Carroll that they would pay him a bonus for working on a then-unprecedented disaster-relief response to hurricanes that had not yet occurred, but also it would have been impossible for Carroll to have detrimentally relied on such a promise. The trial court did not err by entering a summary judgment in favor of Clark and LJC on Carroll’s fraud claim.

The Quantum Meruit and Unjust-Enrichment Claims

A claim of quantum meruit, or quasi-contract, is a request for equitable relief based on the principle “ ‘that if one knowingly accepts services rendered by another, and the benefit and result thereof, the law implies a promise on the part of the one who so accepts with knowledge, to pay the reasonable value of such services rendered.’” Frank Crain Auctioneers, Inc. v. Delchamps, 797 So.2d 470, 474 (Ala.Civ.App.2000) (quoting Richards v. Williams, 231 Ala. 450, 453, 165 So. 820, 823 (1936)).

“ ‘In order to succeed on a claim based on a theory of quantum meruit, the plaintiff must show that it had a reasonable expectation of compensation for its services. Utah Foam Prods., Inc. v. Polytec, Inc., 584 So.2d 1345 (Ala.1991). However, “[w]hen an express contract exists, an argument based on a quantum meruit recovery in regard to an implied contract fails.” Brannan & Guy, [P.C. v. City of Montgomery,] 828 So.2d [914] at 921 [ (Ala.2002) ]. The existence of an express contract on a given subject generally excludes an implied agreement on the same subject. Vardaman v. Florence City Bd. of Educ., 544 So.2d 962 (Ala.1989).’ ”

Mahoney v. Loma Alta Prop. Owners Ass’n, 4 So.3d 1130, 1135 (Ala.Civ.App.2008) (quoting Mantiply v. Mantiply, 951 So.2d at 656).

Carroll argues that if his September 2003 profit-sharing agreement does not encompass the hurricane blue-roof projects, then he is entitled to reasonable compensation for the services he performed on those projects. That argument is answered by the fact that Carroll received a salary during the entire time that he worked on the blue-roof projects, and, on the blue-roof project for which he was the project manager, he received a double salary and a $25,000 management fee. Carroll bore the burden of proving the reasonable value of the services he rendered. See Utah Foam Prods., Inc. v. Polytec, Inc., 584 So.2d 1345, 1351 (Ala.1991). Carroll presented evidence indicating that other LJC employees received more compensation for their work on the hurricane projects than he did, but that evidence did not establish that the compensation he received for the services he rendered was inadequate.

To establish a claim of unjust enrichment, Carroll was required to prove that LJC or Clark “ ‘ “holds money which, in equity and good conscience, belongs to [Carroll] or holds money which was improperly paid to [LJC or Clark] because of mistake or fraud.” ’ ” Avis Rent A Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1123 (Ala.2003) (quoting Dickinson v. Cosmos Broad. Co., 782 So.2d 260, 266 (Ala.2000), quoting in turn Hancock-Hazlett Gen. Constr. Co. v. Trane Co., 499 So.2d 1385, 1387 (Ala.1986)) (emphasis omitted).

“One is unjustly enriched if his retention of a benefit would be unjust. Restatement of Restitution: Quasi Contracts and Constructive Trusts § 1, Comment c. (1937). Retention of a benefit is unjust if (1) the donor of the benefit (here, allegedly [Carroll]) acted under a mistake of fact or in misreliance on a right or duty, or (2) the recipient of the benefit (here, allegedly [LJC or Clark]) engaged in some unconscionable conduct, such as fraud, coercion, or abuse of a confidential relationship. In the absence of mistake or misreliance by the donor, or wrongful conduct by the recipient, the recipient may have been enriched, but he is not deemed to have been unjustly enriched. See Restatement of Restitution: Quasi Contracts and Constructive Trusts § 2 at 16. See generally F. Woodward, The Law of Quasi Contracts (1913).”

Jordan v. Mitchell, 705 So.2d 453, 458 (Ala.Civ.App.1997).

As we have previously discussed, the parties did not mutually assent that Carroll should receive a 25% share of the profits for the blue-roof projects. Accordingly, Carroll did not act “under a mistake of fact or in misreliance on a right or duty.” Jordan v. Mitchell, 705 So.2d at 458. Nor did LJC or Clark engage in any wrongful conduct such as fraud. Id. Therefore, although LJC and Clark may have been enriched by Carroll’s services, they were not unjustly enriched. The trial court did not err by entering a summary judgment in favor of LJC and Clark on Carroll’s quantum meruit and unjust-enrichment claims.

The judgment of the Houston Circuit Court is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Steven BARNES and Helene Barnes v. HMB, LLC, d/b/a Stow-A-Way Storage, and Gene L. Hughes.
    2071241.
    Court of Civil Appeals of Alabama.
    May 15, 2009.

      Jackson B. Harrison of The Harrison Firm, L.L.C., Montgomery, for appellants.
    Joseph J. Gallo, Daleville, for appellees.
   PER CURIAM.

Steven Barnes and Helene Barnes appeal from the judgments of the Dale Circuit Court entered in favor of HMB, LLC, d/b/a Stow-A-Way Storage (“HMB”), and Gene L. Hughes. For the reasons stated herein, we dismiss the appeal.

In March 2006, the Barneses sued HMB and Hughes. They alleged that in 2002 Steven had entered into a rental agreement with HMB pursuant to which Steven had rented a storage unit from HMB in which to store his and Helene’s personal property. They alleged that in 2004, despite the fact that Steven was current in making rental payments under the agreement, HMB and Hughes, without notice to the Barneses, sold the Barneses’ personal property that had been stored in the storage unit. The Barneses’ complaint asserted claims of conversion, intentional infliction of emotional distress, breach of contract, and breach of implied warranty.

In September 2007, HMB and Hughes filed a motion for a summary judgment as to Helene and a motion to dismiss Hughes as a defendant. As to the summary-judgment motion, HMB and Hughes argued that, in three previous criminal cases that had been pending against her, Helene had filed affidavits of substantial hardship in which she had sworn that she did not own any property other than a 1994 model Ford Thunderbird automobile. They argued that, because of her representations in the affidavits of substantial hardship, she was precluded, under the doctrine of judicial estoppel, from asserting her ownership of the personal property that had been contained in the storage unit. As to the motion to dismiss, Hughes argued that HMB was a limited-liability company and that Hughes, as a member of HMB, could be liable only for his own actions or conduct and not for the actions or conduct of HMB. He argued that there could be no valid basis on which to hold him liable in his individual capacity. The trial court entered a summary judgment in favor of both defendants as to Helene’s claims and granted Hughes’s motion to dismiss him as a defendant from the case, leaving only Steven’s claims against HMB to be adjudicated.

In July 2008, HMB filed a motion for a summary judgment as to Steven’s claims against HMB. HMB argued that, like Helene, Steven had submitted, in a criminal case pending against him, an affidavit of substantial hardship in which he had sworn that he owned no personal property other than a pickup truck and a boat. Thus, HMB argued, Steven was judicially estopped from asserting his ownership of the personal property that was contained in the storage unit. On August 18, 2008, the trial court expressly granted HMB’s motion and entered a summary judgment in HMB’s favor. The trial court’s judgment read:

“Defendant’s motion for summary judgment is granted as to defendant [sic], Steven Barnes. See, ORDER of November lb, 2007, granting defendant’s motion for summary judgment [as] to co-plaintiff, Helene Barnes.
“Court costs are taxed as paid.”

(Emphasis added.) On the following day, the trial court, apparently recognizing that it had mistakenly identified Steven as a “defendant” in the litigation, corrected the judgment to read:

“Defendant’s motion for summary judgment is granted as to Plaintiff, Steven Barnes. See, ORDER of November 14, 2007, granting defendant’s motion for summary judgment as to co-plaintiff, Helene Barnes.
“Court costs are taxed as paid.”

(Emphasis added.)

On September 30, 2008, 43 days after the entry of the August 18, 2008, final judgment, and 42 days after the entry of the August 19, 2008, correction, the Barneses filed a notice of appeal. The Alabama Supreme Court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Before we may properly reach the Barneses’ substantive contentions, we must first consider the question of appellate jurisdiction. Although no party has questioned this court’s jurisdiction, “ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)).

Rule 4(a)(1), Ala. R.App. P., provides, with limited exceptions that are not pertinent in this case, that a party wishing to appeal must file a notice of appeal within 42 days of the date of the entry of the judgment. “The timely filing of a notice of appeal is a jurisdictional act.” Marsh v. Marsh, 852 So.2d 161, 163 (Ala.Civ.App.2002).

Rule 60(a), Ala. R. Civ. P., provides, in pertinent part, that “[cjlerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.” This court has noted that “the substantive effect of a Rule 60(a) order ‘is a correction of the original judgment to reflect the original intention of the trial court.’ ” Luker v. Carrell, 25 So.3d 1148, 1152 (Ala.Civ.App.2006) (quoting Bergen-Patterson, Inc. v. Naylor, 701 So.2d 826, 829 (Ala.Civ.App.1997)), rev’d on other grounds, Ex parte Luker, 25 So.3d 1152 (Ala.2007). A change to a judgment to correct a clerical error relates back to the date of the entry of the final judgment. See id. Unlike when a judgment “correction” actually amounts to an amendment of a judgment that changes a prevailing party, a correction to a final judgment pursuant to Rule 60(a) “has no bearing on the timeliness of an appeal from the original uncorrected judgment.” See J.S. v. S.W., 702 So.2d 169, 171 (Ala.Civ.App.1997).

As previously noted, the trial court entered a final judgment on August 18, 2008. On the following day, it changed a single word of its judgment to indicate that Steven Barnes was actually a “plaintiff’ rather than a “defendant.” We conclude that the trial court’s change to its final judgment was nothing more than a correction of a clerical mistake under Rule 60(a), and, as a result, the correction had no effect on the time for filing a notice of appeal from the August 18, 2008, final judgment. See Oliver v. Townsend, 534 So.2d 1038, 1047 (Ala.1988) (holding that the correction of the manner in which a party is denominated in a final judgment is “exactly the sort of clerical mistake that Rule 60(a) was intended to provide a remedy for”). As a result, the 42-day period in which the Barneses were required to have filed a notice of appeal expired on September 29, 2008, the day before they filed their notice of appeal. Thus, this court is left with no alternative but to dismiss their appeal. See Rule 2(a)(1), Ala. R.App. P. (“An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.”).

APPEAL DISMISSED.

All the judges concur.

      . Brown v. Brown, 988 So.2d 1053, 1057-58 (Ala.Civ.App.2008), is distinguishable because tine judgment under review in this case was, on its face, adverse to Steven; the only pending summary-judgment motion at the time of the entry of the August 18, 2008, judgment was the one filed by HMB seeking a judgment against Steven.


author: BRYAN, Judge.

text:
    Anne JOHNSON et al. v. Roosevelt JOHNSON.
    2071182.
    Court of Civil Appeals of Alabama.
    May 22, 2009.

      A1 Jones, Tuscaloosa, for appellants.
    Nicholas H. Cobbs, Jr., Greensboro, for appellee.
   BRYAN, Judge.

Anne Johnson (“Anne”), Henry Johnson (“Henry”), Eula M. Johnson (“Eula”), Marie Johnson (“Marie”), Edna Johnson Black (“Edna”), Edward Johnson (“Edward”), Daniel Johnson (“Daniel”), and Mary E. Robinson (“Mary”), who constitute 8 of the 10 joint owners of a 37-acre parcel of real property in Hale County (“the property”) appeal a judgment ordering the property sold to another 1 of the 10 joint owners of the property, Roosevelt Johnson (“Roosevelt”). We affirm.

On July 18, 2007, Anne sued Roosevelt, Henry, and Herbert Johnson (“Herbert”), the 10th joint owner of the property, seeking, among other things, an order compelling the harvesting and sale of the standing timber on the property and the distribution of the proceeds of that sale to the 10 joint owners of the property. Along with her complaint, Anne filed affidavits signed by Eula, Marie, Edna, Edward, Daniel, and Mary in which they stated that they were agreeing to transfer their interests in the property to Anne in order to facilitate the sale of the timber on the property. Anne also filed an affidavit she had signed in which she stated that she was agreeing to return to Eula, Marie, Edna, Edward, Daniel, and Mary their respective interests in the property as soon as the timber on the property had been sold. Roosevelt moved the trial court to dismiss Anne’s complaint on the grounds, among others, that no cognizable claim for a forced sale of timber existed under Alabama law and that Anne had failed to join necessary pai’ties.

Thereafter, Anne amended her complaint to realign Henry as a plaintiff rather than a defendant. Along with the amendment of her complaint, Anne filed an affidavit signed by Henry in which he stated that he was agreeing to sell his interest in the property to Anne to facilitate the sale of the timber. Following a hearing on Roosevelt’s motion to dismiss, the trial court, on November 13, 2007, entered an order granting Anne 30 days to amend her complaint to add all necessary parties.

On December 11, 2007, Anne amended her complaint to name Eula, Marie, Edna, Edward, Daniel, and Mary as additional plaintiffs and to seek an order compelling the sale for division of the property rather than a sale for division of the timber only. The trial court then denied Roosevelt’s motion to dismiss, and Roosevelt answered the complaint as amended.

The trial court initially set the action for trial on February 5, 2008. Subsequently, however, the February 5, 2008, trial date was continued and the trial was set for June 12, 2008. On May 30, 2008, 13 days before the June 12 trial date, Roosevelt filed a notice of his intent to purchase the interests in the property owned by the other joint owners. On June 11, one day before the June 12 trial date, Anne filed a notice of her intent to purchase the interests of the other owners of the property. At trial on June 12, Roosevelt objected to Anne’s notice of intent to buy the interests of the other joint owners of the property on the ground that it was untimely because it had been filed less than 10 days before the June 12 trial date. The trial court then recessed the trial, appointed an appraiser to appraise the value of the property at Roosevelt’s expense, and ordered the parties to file briefs addressing the issue whether Anne had waived her right to purchase the interests of the other joint owners by filing her notice of intent less than 10 days before the June 12 trial date. On July 8, the trial court entered an order reconvening the trial on September 5, 2008.

On July 11, Roosevelt filed a brief in which he argued that Anne’s notice of intent to purchase the interests of the other joint owners was invalid because it had been filed less than 10 days before the June 12 trial date. On July 18, Anne, Henry, Eula, Marie, Edna, Edward, Daniel, and Mary filed a brief in which they argued that Anne’s notice was valid even though it had been filed less than 10 days before the June 12 trial setting.

The court-appointed appraiser filed an appraisal valuing the property at $86,000 on September 2, 2008. At the reconvened trial on September 5, 2008, the parties stipulated that the property was jointly owned by Anne, Henry, Eula, Marie, Edna, Edward, Daniel, Mary, Roosevelt, and Herbert and that the property could not be equitably divided among them. On September 9, 2008, the trial court entered a judgment ruling that Roosevelt had timely invoked his right to purchase the property pursuant to § 35-6-100 by filing his notice of intent to purchase the interests of the other joint owners not less than 10 days before the June 12 trial date; ruling that Anne, by filing her notice of intent to purchase the interests of the other joint owners less than 10 days before the June 12 trial date, had waived her right to purchase the interests of the other joint owners; and directing the circuit-court clerk, subject to Roosevelt’s paying $36,000 into court within 30 days, to execute a deed conveying the property to Roosevelt and to distribute to the joint owners of the property in pro rata shares the balance of the $36,000 after payment of certain fees.

On September 15, 2008, Anne, Henry, Eula, Marie, Edna, Edward, Daniel, and Mary appealed to the supreme court. On September 17, 2008, Anne, Henry, Eula, Marie, Edna, Edward, Daniel, and Mary filed a Rule 59(e), Ala. R. Civ. P., motion to vacate the judgment entered by the trial court. The Rule 59(e) motion alleged that only Anne had instructed their attorney to amend their complaint to seek a sale for division of the property rather than a sale for division of the timber only and that Anne was mistaken in believing that she had the authority of Henry, Eula, Marie, Edna, Edward, Daniel, and Mary to instruct their attorney to amend the complaint in that regard. In support of the Rule 59(e) motion, Anne, Henry, Eula, Marie, Edna, Edward, Daniel and Mary filed affidavits signed by Eula, Marie, Edna, and Mary in which they stated that they had given Anne authority to instruct their attorney to seek a sale for division of the timber on the property only and an affidavit signed by Anne in which she stated that she was mistaken in believing that Henry, Eula, Marie, Edna, Edward, Daniel and Mary had given her authority to instruct their attorney to seek a sale for division of the property. Because the trial court did not rule on the Rule 59(e) motion, it was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P., on the 90th day after it was filed. The notice of appeal filed by Anne, Henry, Eula, Marie, Edna, Edward, Daniel and Mary then became effective pursuant to Rule 4(a)(5), Ala. R.App. P. The supreme court subsequently transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

The standard of review in this appeal is de novo:

“When a trial judge’s ruling is not based substantially on testimony presented live to the trial judge, review of factual issues is de novo. Eubanks v. Hale, [752] So.2d [1113] (Ala.1999). ‘[W]here the trial court’s ruling rests upon a construction of facts indisputably established, this Court indulges no presumption of correctness in favor of the lower court’s ruling.’ Alabama Farm Bureau Mut. Cas. Ins. Co. v. Dyer, 454 So.2d 921, 923-24 (Ala.1984). See also, Beavers v. Walker County, 645 So.2d 1365, 1372 (Ala.1994) (‘[Wjhere the facts are not disputed the ore tenus standard does not apply.’). ‘ “[W]hen a trial court sits in judgment on facts that are undisputed, an appellate court will determine whether the trial court misapplied the law to those undisputed facts.” ’ Harris v. McKenzie, 703 So.2d 309, 313 (Ala.1997) (quoting Craig Constr. Co., Inc. v. Hendrix, 568 So.2d 752, 756 (Ala.1990)). The ore tenus ‘standard’s presumption of correctness has no application to a trial court’s conclusions on questions of law.’ Beavers, 645 So.2d at 1372. ‘[0]n appeal, the ruling on a question of law carries no presumption of correctness, and this Court’s review is de novo.’ Ex parte Graham, 702 So.2d 1215, 1221 (Ala.1997).”

Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869, 871 (Ala.1999).

Anne, Henry, Eula, Marie, Edna, Edward, Daniel, and Mary first argue that the trial court erred in concluding that Anne’s notice of intent to purchase the interests of the other joint owners was not timely. Citing Scott Paper Co. v. Griffin, 409 So.2d 1375, 1379 (Ala.1982), Anne, Henry, Eula, Marie, Edna, Edward, Daniel, and Mary argue that Anne’s notice was timely filed because it was not filed less than 10 days before September 5, 2008, which was the final trial date. In Scott Paper Co. v. Griffin, the supreme court held that, when the original trial setting in a sale-for-division action was continued, § 35-6-100 required that notices of intent to purchase the interests of the other joint owners be filed not less than 10 days before the date to which the trial was continued rather than not less than 10 days before the date on which the trial was originally set. Anne, Henry, Eula, Marie, Edna, Edward, Daniel, and Mary argue that the case now before us is analogous to Scott Paper Co. v. Griffin; they argue that, in the case now before us, the original trial setting of February 5, 2008, was continued until June 12, 2008, and then continued a second time to September 5, 2008, and, therefore, they assert, under the holding in Scott Paper Co. v. Griffin, Anne’s notice was timely because it was filed not less than 10 days before September 5, 2008. However, the record in the case now before us indicates that the parties appeared for trial on June 12, 2008; that Roosevelt objected to Anne’s notice at the trial on June 12, 2008; and that the trial court recessed the trial so that the parties could brief the issue whether Anne’s notice was untimely. A recess of a trial differs from a continuance of a trial. A recess of a trial is a break in a trial that has commenced, while a continuance is a postponement of a trial that has not commenced. See Black’s Law Dictionary 1297 and 339 (8th ed.2004). Accordingly, applying the holding in Scott Paper Co. v. Griffin to the case now before us, we conclude that the continuance of the original trial date of February 5, 2008, to June 12, 2008, made the June 12, 2008, trial date the operative trial date for purposes of § 35-6-100; however, the recess of the June 12, 2008, trial until September 5, 2008, did not make the resumption of the trial on September 5, 2008, the operative trial date for purposes of § 35-6-100. Therefore, the trial court correctly concluded that Anne’s notice was untimely because it was filed less than 10 days before the June 12, 2008, trial date.

The second argument presented by Anne, Henry, Eula, Marie, Edna, Edward, Daniel, and Mary is that Henry, Eula, Marie, Edna, Edward, Daniel, and Mary were “oblivious to the sale and thought that they had only agreed to the sale of the timber” and “would have objected to the sell [sic] of the property or would have attempted to purchase the property themselves” if they had known that their amended complaint sought a sale for division of the property. However, they do not dispute that the amended complaint seeking a sale for division of the property was filed on their behalf by an attorney who represented them. Indeed, that same attorney continues to represent them in their appeal to this court. In SouthTrust Bank v. Jones, Morrison, Womack & Dearing, P.C., 939 So.2d 885, 903 (Ala.Civ.App.2005), this court stated:

“ ‘[A]n attorney is the duly authorized agent of his client and his acts are those of his client. The client is, therefore, bound by the acts of his attorney in the course of legal proceedings in the ab sence of fraud, or collusion, and knowledge of the attorney is imputed to the client, notwithstanding the client had no actual knowledge or notice of the facts and circumstances.’

(Quoting Ex parte Aaron, 275 Ala. 377, 379, 155 So.2d 334, 335 (1963) (Merrill, J., concurring specially)) (emphasis added). The record contains affidavits signed by Eula, Marie, Edna, and Mary in which they stated that they had given Anne authority to instruct their attorney to seek a sale for division of the timber on the property only and an affidavit signed by Anne in which she stated that she was mistaken in believing that Henry, Eula, Marie, Edna, Edward, Daniel and Mary had given her authority to instruct their attorney to seek a sale for division of the property; however, the record does not contain any evidence indicating that the filing of the amended complaint seeking a sale for division of the property was a result of fraud or collusion. Consequently, the filing of that complaint by the attorney representing Henry, Eula, Marie, Edna, Edward, Daniel, and Mary is deemed to be their act and their attorney’s knowledge of the filing of that amended complaint is imputed to them even if they did not have actual knowledge of it. SouthTrust Bank v. Jones, Morrison, Womack & Dearing, P.C., supra.

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

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

      . The 10th joint owner of the property is Herbert Johnson. Herbert did not participate in the proceedings below, and he has not filed a brief with this court. The 10 joint owners are siblings.

      . Section 35-6-100, Ala.Code 1975, provides:
      “Upon the filing of any petition for a sale for division of any property, real or personal, held by joint owners or tenants in common, the court shall provide for the purchase of the interests of the joint owners or tenants in common filing for the petition or any others named therein who agree to the sale by the other joint owners or tenants in common or any one of them. Provided that the joint owners or tenants in common interested in purchasing such interests shall notify the court of same not later than 10 days prior to the date set for trial of the case and shall be allowed to purchase whether default has been entered against them or not.”

      . The literal language of § 35-6-100 does not provide that a joint owner who brings the sale-for-division action has a right to purchase the interests of the other joint owners; however, the Alabama Supreme Court, in Jolly v. Knopf, 463 So.2d 150 (Ala.1985), held that § 35-6-10Ó would violate the right to equal protection of a joint owner who brings the sale-for-division action unless he or she were afforded the right to purchase the interests of the other joint owners under § 35-6-100.

      . Under Rule 4(a)(5), Ala. R.App. P., the filing of the Rule 59(e) motion caused the notice of appeal to be held in abeyance pending the resolution of the Rule 59(e) motion. Rule 4(a)(5) provides:
      "A notice of appeal filed after the entry of the judgment but before the disposition of all post-judgment motions filed pursuant to Rules 50, 52, 55, and 59, Alabama Rules of Civil Procedure, shall be held in abeyance until all post-judgment motions filed pursuant to Rules 50, 52, 55, and 59 are ruled upon; such a notice of appeal shall become effective upon the date of disposition of the last of all such motions.”

      . Rule 59.1, Ala. R. Civ. P., provides:

        “No post-judgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days, unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown. A failure by the trial court to dispose of any pending post-judgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period."

      (Emphasis added.)

      . See note 4, supra.


text:
    Susan T. FIELDING v. Johnny M. FIELDING.
    2071072 and 2071073.
    Court of Civil Appeals of Alabama.
    May 22, 2009.

      Ralph K. Strawn, Jr., of Henslee, Robertson, Strawn & Sullivan, L.L.C., Gadsden, for appellant.
    Leon Garmon, Gadsden, for appellee.
   BRYAN, Judge.

Susan T. Fielding (“the mother”) appeals from the final judgment of the Eto-wah Circuit Court denying her petition seeking modification of the postminority-educational-support obligation of Johnny M. Fielding (“the father”) regarding the parties’ son, Taber Fielding (“the son”).

The record reveals the following pertinent facts. The mother and the father were divorced in July 1997. The mother filed her first petition seeking postminority support for the son on March 8, 2001, when the son was 18 years old. The trial court ordered the father to pay one-half of the son’s postminority educational expenses, and the father appealed the decision of the trial court to this court. See Fielding v. Fielding, 843 So.2d 766 (Ala.Civ.App.2002) (“Fielding I ”). In Fielding I, this court “reversed a judgment entered in case no. DR-96-956.01 ordering the father to pay one-half of the parties son’s postminority educational expenses because there was insufficient evidence of the son’s educational costs to determine whether that award had imposed an undue financial hardship on the father.” Fielding v. Fielding, 978 So.2d 52, 53 (Ala.Civ.App.2007) (“Fielding II”). On remand from our decision in Fielding I, the trial court, in an order entered on June 25, 2003, found “that the father could contribute to the payment of the [son’s and the parties’ daughter’s] postminority educational expenses in an amount equal to the amount of certain military disability benefits that the father was then eligible for; award[ed] postminority educational support in an amount equal to these benefits; and reserved] jurisdiction to entertain petitions in the future seeking modification of the father’s postminority-educational-support obligation.” Id. at 54.

On July 24, 2003, the mother filed a postjudgment motion to alter, amend, or vacate that order; included in her post-judgment motion was a motion entitled “Plaintiffs Motion for Modification of Child Support” seeking to modify the father’s postminority-educational-support obligation. Id. The mother filed the motion for modification because the son was transferring from a local community college to the University of Alabama where he would have increased expenses. The trial court denied the mother’s post-judgment motion, but it failed to rule on her motion to modify. Id.

On June 28, 2004, the mother again petitioned the trial court seeking to modify the father’s postminority-educational-support obligation. Id. The parties sought extensive discovery, and in August 2005, the son graduated from the University of Alabama. On August 11, 2006, the trial court dismissed the mother’s June 28, 2004, petition, believing that it did not have jurisdiction to hear the petition because the son had graduated. Id.

The mother filed two notices of appeal, one pertaining to the motion to modify she had filed on July 24, 2003, and one pertaining to the petition to modify she had filed on June 28, 2004. Id. at 54-55. The two appeals were consolidated, and this court held that the appeal from the July 24, 2003, motion to modify was due to be dismissed because it was from a nonfinal judgment. Id. at 55. This court then held that “the trial court had expressly reserved jurisdiction to modify its award of postminority educational support in its June 25, 2003, judgment,” id., and we reversed the trial court’s judgment dismissing the mother’s June 28, 2004, petition for modification and remanded the case to the trial court.

On remand from our decision in Fielding II, the trial court held an ore tenus hearing on the mother’s petition to modify the father’s postminority-educational-sup-port obligation regarding the son. The son, the father, and the mother testified extensively at the ore tenus hearing.

The son testified that, after he graduated from high school, he attended Gadsden State Community College. In August 2003, however, the son began attending the University of Alabama; he was enrolled as a full-time student there until his graduation in August 2005. Based on the father’s military service, the son received benefits under the “G.I. Bill of Rights” (“the G.I. Bill”), which covered all of his tuition and books required for the classes that he enrolled in. The son worked 10-20 hours a week at a printing company while he attended the University of Alabama, and he graduated with a grade-point average of 3.7.

The expenses not covered by the benefits provided under the G.I. Bill, specifically, the son’s rent, utility bills, and everyday living expenses were paid for by the mother; the mother would deposit funds into an account, and the son would use those funds for his expenses. The mother presented itemized receipts and check registers to show the approximate expenses of the son during the 25 months he attended the University of Alabama; those expenses were as follows:

Fall 2003: $ 6,701.97
Spring 2004: $ 5,479.02
Summer 2004: $ 2,403.72
Fall 2004: $ 4,844.27
Spring 2005: $ 3,747.53
Total: $23,176.51

The son also testified that he would visit the father while he was enrolled at the University of Alabama, sometimes once a week and other times once a month. The son and the father testified that the father would give the son $20, $50, or $100 in cash whenever the son visited the father.

The father testified as to his income and benefits. In 2001, the father worked at the Etowah County Detention Center (“the detention center”) as a jailer and his annual income was approximately $19,000. In 2003, the father’s annual income from his employment at the detention center was approximately $23,500. The father is a war veteran, and he is currently 70% disabled. In 2003, he began receiving disability benefits from the Veteran’s Administration (‘VA”) in the amount of $15,571 a year. He also began drawing approximately $8,400 a year in retirement benefits from Goodyear Tire. The father also received payments from the mother for his interest in the marital home. The father’s counsel objected to the admission of evidence regarding his disability and retirement benefits and the payments he received from the mother because, he argued, those benefits and payments do not qualify as income. In 2004, the father received the same benefits, and his income from his employment at the detention center remained at $23,500 a year. The father testified that his income and benefits were generally the same for 2005. The father was questioned by the mother’s attorney about benefits the father received through the VA because the son was in college, and it was determined that, after the son graduated, the father’s disability check from the VA decreased by $144 per month.

The mother testified that she kept meticulous records of the son’s expenses because she wanted the father to pay for half of them. She stated that she is not asking the father to pay half of any spending money, gasoline expenses, or the cost of any automobile repairs that were required by the son. She testified that the son had a second account that he used for those expenses and that he deposited his paycheck from the printing company into the second account.

The mother admitted to having substantial assets in addition to her income, but she believed that the father should have to pay some portion of the son’s expenses. The mother submitted a list of her assets and liabilities as part of discovery before the ore tenus hearing. The record reveals that the mother’s total assets, including real estate, savings accounts, retirement accounts, and vehicles, are valued at approximately $434,000; after subtracting her liabilities, her estimated net worth is approximately $259,000. During the years the son was enrolled at the University of Aabama, the mother earned $40,000 a year as a teacher in 2003 and, after she retired, the mother drew approximately $23,000 and $26,000 per year in retirement benefits in 2004 and 2005, respectively.

On May 30, 2008, the trial court denied the mother’s petitions in DR-96-956.01 and DR-96-956.02 without making any specific findings of fact. After her post-judgment motions were denied, the mother timely appealed to this court.

On appeal, the mother states four issues for this court to consider. Because we reverse the order of the trial court based on a single issue raised by the mother on appeal, we pretermit discussion of the other issues raised by the mother in her brief to this court. The mother argues that the trial court erred in failing to modify its previous orders to require the father to contribute “something” toward the son’s college-education expenses. We agree.

In Stinson v. Stinson, 729 So.2d 864, 868 (Ma.Civ.App.1998), this Court stated:

“In Ex parte Bayliss, 550 So.2d 986 (Ala.1989), our supreme court held that the trial court has discretion whether to order postminority support at all, and that, in exercising that discretion, the trial court shall consider
“ ‘all relevant factors that shall appear reasonable and necessary, including primarily the financial resources of the parents and the child and the child’s commitment to, and aptitude for, the requested education.’
“Ex parte Bayliss, 550 So.2d at 987 (emphasis in original). In addition, the trial [court] may consider
‘the standard of living that the child would have enjoyed if the marriage had not been dissolved and the family unit had been preserved and the child’s relationship with his parents and responsiveness to parental advice and guidance.’

“Id.”

In Meadows v. Meadows, 3 So.3d 221, 227 (Ala.Civ.App.2008), we stated this court’s standard of review when the trial court has received ore tenus evidence:

“Because the trial court’s factual findings in support of the judgment are presumed to be correct based upon the trial court’s unique ability to both see and hear the witnesses before it and to judge their credibility, we may not reverse the trial court’s judgment in this matter unless the evidence does not support the findings that support that judgment. Ex parte J.E., 1 So.3d 1002, 1008 (Ala.2008).”

This court adheres to the general rule that when a trial court makes no specific findings of fact in its final judgment, we “will assume that the trial judge made those findings necessary to support the judgment.” Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992) (citing Fitzner Pontiac-Buick-Cadillac, Inc. v. Perkins & Assocs., Inc., 578 So.2d 1061 (Ala.1991)).

In Thrasher v. Wilburn, 574 So.2d 839, 841 (Ala.Civ.App.1990), we stated:

“A parent has a legal duty to provide or aid in providing a college education for his/her child if the child demonstrates the ability and willingness to attain a higher education and the parent has sufficient estate, earning capacity, or income to provide financial assistance without undue hardship on himself.”

Because a parent has a legal duty to at least aid in providing a college education for their child, if it is demonstrated that the child has the ability and willingness to attain a college education, the father in this case is required to contribute financially to the son’s postminority educational expenses unless doing so would impose on him an undue hardship. See Thrasher v. Wilburn, supra. The trial court’s order failing to require the father to make any monetary contribution to the son’s educational expenses required a finding by the trial court that an order compelling the father to contribute to the son’s educational expenses would be an undue hardship on the father.

In Thrasher v. Wilburn, this court reversed the trial court’s order regarding postminority educational support and remanded the case so that the trial court could take evidence of the “reasonable necessaries ... for the child to attend college.” Thrasher v. Wilburn, 574 So.2d at 841. Then, we held that, “[bjaving considered such evidence, it is necessary that the [trial] court determine the financial ability of the father to contribute or provide such amount without undue hardship to himself.” Id.

The mother in this case introduced extensive evidence of the son’s educational expenses that were not covered by the benefits provided under the G.I. Bill. The father had the burden to show to the trial court that an order requiring him to contribute to the son’s educational expenses would be an undue hardship.

There is extensive testimony and documentation submitted on the record to show the income and assets of the father. However, evidence as to the expenses of the father during the time the son was enrolled at the University of Alabama is not in the record. This court has consistently looked to the monthly income and monthly expenses of a parent in determining whether it would be an undue hardship for that parent to pay postminority educational support. See A.L. v. B.W., 735 So.2d 1237, 1239 (Ala.Civ.App.1999); Lynn v. Lynn, 772 So.2d 1189, 1192 (Ala.Civ.App.2000); and Jones v. Philpot, 591 So.2d 864, 867 (Ala.Civ.App.1991).

In Jones v. Philpot, supra, this court reviewed the monthly income and monthly expenses of the father before noting that “[ordinary arithmetic would indicate that after taxes and other deductions, the father has a disposable income barely sufficient to meet his current financial obligations.” 591 So.2d at 867. We then reversed the decision of the trial court ordering the father to contribute to his child’s postminority expenses because it would cause the father undue hardship.

At trial, the father in this case failed to show that he had expenses that exceeded his income, or that his income was “barely sufficient to meet his current financial obligations”; therefore, the trial court could not have determined that it would be an undue hardship on the father to contribute to the son’s postminority educational expenses. Because the evidence does not support the findings we must assume that the trial court made below, we reverse the judgment of the trial court denying the mother’s petition for a modification of the father’s postminority-support obligation. We remand the case for the trial court to determine, from the evidence already presented by the parties, the father’s ability to contribute to the son’s postminority educational expenses.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

MOORE, J., concurs in the result, without writing.

      . The son also testified that he took classes at Jacksonville State University in the summer of 2004. In the summer of 2005, the son participated in an unpaid internship that was required for graduation.

        . The expenses listed for Summer 2004 include tuition at Jacksonville State University in the amount of $848. The son testified that it was his understanding that he could not use the benefits provided under the G.I. Bill to pay tuition at Jacksonville State University when he was also enrolled at the University of Alabama.

      .The mother testified that Exhibit 5, which contained the son's expenses for Fall 2004, actually contained some expenses for "recreational trips” that were not intended to be included as part of the mother’s claim.

      . The mother filed two notices of appeal; they were consolidated by this court on August 22, 2008.

      . The father’s ability to contribute should be based only on the father's income in the years that the son was enrolled at the University of Alabama. Also, the father’s financial ability to contribute should be considered notwithstanding the son's receipt of benefits under the G.I. Bill; as we noted above, the father has a "legal duty” to at least aid in providing a college education to the son, if, based on the father’s financial ability to pay, it would not impose an undue hardship on him.


text:
    Sherry L. GILBREATH and Raymond W. Gilbreath v. Charlotte HARBOUR and Richard Earl Harbour.
    2071242.
    Court of Civil Appeals of Alabama.
    May 22, 2009.

      John H. Ufford II, Crossville, for appellants.
    J. David Dodd and J. Eric Brisendine of Scruggs, Dodd & Dodd, Attorneys, Fort Payne, for appellees.
   THOMAS, Judge.

Sherry L. Gilbreath and Raymond W. Gilbreath own a 30-acre parcel of real property located in Crossville. Their deed also conveyed to them a 21-foot strip of land running south from their property to the Crossville-Oak Hill public road. A driveway to the Gilbreaths residence is located generally inside the 21-foot strip. The western boundary of their property is the quarter section line of the northwest quarter of the northeast quarter of Section 33.

Charlotte Harbour and Richard Earl Harbour own a parcel of property adjoining the Gilbreaths’ property on its western border. The Harbours’ eastern boundary is described in their deed as the quarter section line of the northwest quarter of the northeast quarter of Section 33. The Har-bours erected a fence (“the Harbour fence”) along, but not on, the easternmost boundary of their property. The Harbour fence parallels the Gilbreaths’ driveway but is located along the edge of an earthen berm or bank that sits above the drive and the ditch alongside of it. Thus, there exists a strip of land between the Harbour fence and the driveway.

The Gilbreaths and the Harbours had been neighborly until Raymond Gilbreath had the Harbours’ son arrested in 2001. The neighborly relationship deteriorated at that point, and the Gilbreaths insisted that the Harbours were not entitled to use the driveway or any of the land located between the driveway and the Harbour fence. The Harbours had their property surveyed in 2002, and they insisted that they owned the land between the driveway and the Harbour fence. In fact, the Har-bours’ survey revealed that, at certain points, the Gilbreaths’ driveway crossed the quarter section line and encroached upon their property.

In February 2004, the Gilbreaths sued to establish a boundary line between the properties and claimed that they had adversely possessed the strip of land between the driveway and the Harbour fence. In addition, the Gilbreaths claimed that the Harbours’ son, Timothy Harbour, had trespassed on their property, and they sought damages for trespass and a restraining order against him. The parties agreed, and the trial court ordered, that the trespass claim and other issues pertaining to Timothy Harbour would be tried separately.

After a trial on the boundary-line issue, the trial court entered a judgment declaring the boundary line between the properties, determining that the Gilbreaths had not proven that they had adversely possessed the strip between the Harbour fence and the driveway, awarding the Gil-breaths a prescriptive easement over the driveway, and denying the Harbours a prescriptive easement over the driveway. The Gilbreaths appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6). We dismissed that appeal, because, although the trial court had rendered an order certifying the judgment as final pursuant to Rule 54(b), Ala. R. Civ. P., that order had never been input into the State Judicial Information System (“SJIS”) and had therefore never been entered as required by Rule 58(b), Ala. R. Civ. P. See Gilbreath v. Harbour, 3 So.3d 875, 878 (Ala.Civ.App.2008). After our dismissal of the first appeal, the trial court directed the entry of its order certifying the boundary-line judgment as final, and the Gilbreaths again appealed to the Alabama Supreme Court; that court transferred that appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

On appeal, the Gilbreaths complain that the trial court erred in determining that they had not proven that they had adversely possessed the driveway and the strip of land between the driveway and the Harbour fence. In addition, the Gil-breaths argue that, because the trial court determined that they had established a prescriptive easement over the driveway, it erred in not finding that they had adversely possessed at least that part of the Har-bours’ property over which portions of the driveway run. The Harbours, however, contend that the trial court correctly concluded that the Gilbreaths had failed to present clear and convincing evidence of adverse possession because the testimony at trial regarding the upkeep of the disputed strip was conflicting and because any actions taken by the Gilbreaths to mow and clear the strip were not hostile.

“ Where a trial court hears ore tenus testimony [in a boundary-line case], ... its findings based upon that testimony are presumed correct, and its judgment based on those findings will be reversed only if, after a consideration of all the evidence and after making all inferences that can logically be drawn from the evidence, the judgment is found to be plainly and palpably erroneous.’ Bearden v. Ellison, 560 So.2d 1042, 1043 (Ala.1990). The presumption of correctness accorded to the trial court’s findings based on evidence presented ore tenus ‘is particularly strong in boundary line disputes and adverse possession cases, and the presumption is further enhanced if the trial court personally views the property in dispute. Wallace v. Putman, 495 So.2d 1072, 1075 (Ala.1986).’ Bell v. Jackson, 530 So.2d 42, 44 (Ala.1988).”

Shirey v. Pittman, 985 So.2d 484, 486 (Ala.Civ.App.2007). However strong the ore tenus presumption in adverse-possession cases, “[t]he presumption ... is inapplicable where the facts are undisputed and the issue is resolved simply by applying the relevant law to these undisputed facts.” Lilly v. Palmer, 495 So.2d 522, 526 (Ala.1986).

Raymond Gilbreath testified that he had been familiar with the properties in question since 1966, because he had worked for one of his predecessors in title, Charles Peek. In addition, after other members of the Peek family had owned the Gilbreaths’ property during the 1960s and 1970s, Raymond’s brother, Jimmy Gilbreath, purchased the property in 1986. Raymond helped Jimmy maintain the property. Jimmy sold the property to Raymond in 1992. Raymond testified that he and Jimmy had built up the driveway with chert from Raymond’s chert pit over the years and that they had both mowed and bush-hogged the strip of land on each side of the drive for many years. According to Raymond, the Harbour fence or the bank along the driveway upon which the Har-bour fence sits had been recognized as the boundary between the properties for many years by his predecessors in title. Sherry Gilbreath also testified that they owned the land on both sides of the driveway, which, she said, she and Raymond had maintained by mowing it.

Rae Ellen Peek, who had owned the Gilbreaths’ property along with her husband Julian “Jabbo” Peek from 1978 until 1985, testified that Jabbo had maintained the driveway and the ditches on both sides by grading the driveway as needed, cleaning the ditches of debris, and mowing the grass. She said that she and her husband had allowed the daughter and the sister of a neighboring landowner, Gene Upton, to use the driveway when they were either living on some adjoining property or preparing to build on that property.

Jimmy Gilbreath testified that he bought the Gilbreaths’ property from Rae Ellen after Jabbo died. According to Jimmy, he told the Uptons that they could no longer use the driveway. Other than a few people who might have made a wrong turn and family and friends using the driveway to travel to and from the Gil-breaths’ house, no one else used the driveway while he owned the property. Jimmy said that he put a “Private Drive — No Trespassing” sign at the end of the driveway in 1987 or 1988, after his father died, because his mother was at the house alone during the week and he did not want people to drive down the driveway thinking it was a road. Like Raymond, Jimmy testified that his understanding was that the property line between his property and the Harbours’ property was the Harbour fence; he said that he had maintained both sides of the driveway.

Charles Peek, who owned the Gil-breaths’ property in 1967, testified that the Harbour fence was not in existence when he owned the property. However, he said that the Harbours’ predecessor in title farmed the land up to the ditch bank at that time. According to Peek, the driveway and the ditch bank along it was considered the boundary line because he and his family had kept the area clean and mowed.

Richard Harbour testified that he had built the Harbour fence, first in the late 1970s or early 1980s and then again in the early 2000s. Harbour testified that he had taken title to his property from his mother in the late 1970s or early 1980s; he said that he had not had his property surveyed at that time. According to Harbour, he had always understood that the ditch was the property line and that anyone who needed to use the driveway was free to access it. Specifically, Harbour testified that he believed that his property extended from “ditch to ditch,” apparently referencing the ditch bank between the driveway and the Harbour fence and a ditch bordering the western border of his property. He said that he thought the driveway was “a joint thing.”

In fact, Harbour testified that he had sometimes used the driveway, although he had not used it in more recent years other than a few times per month. When asked why he had not placed the Harbour fence on the boundary line, Harbour explained that he had placed the Harbour fence along the earthen berm because, had he placed it in the ditch, the cows could have stepped over it. Harbour said that he had maintained the strip between the driveway and the Harbour fence over the years, noting that the area where he had placed the Harbour fence was “growed completely up” in the later 1970s or early 1980s when he first built the Harbour fence. However, Harbour said that he had not “bothered” with the land between the ditch and the driveway. Harbour also admitted that he had not done any work on the driveway. Charlotte Harbour testified that, on occasion, she had asked a hired hand, Jack Davis, to clean up the area around the Harbour fence line for them.

Our supreme court has long recognized that a boundary-line dispute between coterminous landowners is subject to “ ‘a unique set of requirements that is a hybrid of the elements of adverse possession by prescription and statutory adverse possession.’ ” See McCallister v. Jones, 432 So.2d 489, 491 (Ala.1983) (quoting Karlin v. Tensaw Land & Timber Co., 390 So.2d 616, 618 (Ala.1980)).

“ ‘In the past there has been some confusion in this area, but the basic requirements are ascertainable from the applicable case law. In a boundary dispute, the coterminous landowners may alter the boundary line between their tracts of land by agreement plus possession for ten years, or by adverse possession for ten years. See Reynolds v. Rutland, 365 So.2d 656 (Ala.1978); Carpenter v. Huffman, 294 Ala. 189, 314 So.2d 65 (1975); Smith v. Brown, 282 Ala. 528, 213 So.2d 374 (1968); Lay v. Phillips, 276 Ala. 273, 161 So.2d 477 (1964); Duke v. Wimberly, 245 Ala. 639, 18 So.2d 554 (1944); Smith v. Backus, 201 Ala. 534, 78 So. 888 (1918). But see, Davis v. Grant, 173 Ala. 4, 55 So. 210 (1911). See also Code 1975, § 6-5-200(e). The rules governing this type of dispute are, in actuality, a form of statutory adverse possession. See Code 1975, § 6-5-200(c); Berry v. Guyton, 288 Ala. 475, 262 So.2d 593 (1972).’ ”

McCallister, 432 So.2d at 491 (quoting Kerlin, 390 So.2d at 618-19). See also Wadkins v. Melton, 852 So.2d 760, 764 (Ala.Civ.App.2002). In any event, “[t]he burden rests upon the party asserting the adverse claim to prove actual, hostile, open, notorious, exclusive, and continuous possession for the statutory period, ... and such proof must be by clear and convincing evidence.” Tidwell v. Strickler, 457 So.2d 365, 368 (Ala.1984); see also Cooper v. Cate, 591 So.2d 68, 70 (Ala.1991).

The trial court determined that the Gil-breaths had not maintained the strip between the driveway and the Harbour fence in a manner sufficient to convey an objective intent to claim that area as their own. According to the trial court, the Gilbreaths had not proven, by clear and convincing evidence, that mowing and maintaining the disputed strip had been performed under a claim or right as opposed to being simply, as the trial court described it, “a gesture of neighborly co-existence,” at least before the neighborly relationship deteriorated only a few years before the trial. The trial court further concluded that the Gilbreaths had proved an entitlement to an exclusive prescriptive easement over the driveway.

On appeal, the Gilbreaths argue that the evidence established adverse possession through their use of the driveway and at least part of the disputed strip for the requisite 10 years (or more, when considering the use of their predecessors in title). First, the Gilbreaths point out that Richard Harbour testified that, although he had cleared the area surrounding the Harbour fence and down to the ditch, he had never “bothered” with the land between the ditch and the driveway. In addition, the Gilbreaths note that Harbour testified that he thought his property extended from “ditch to ditch” and indicated that he did not believe that he owned the driveway. Further, the Gilbreaths argue that the trial court’s conclusion that they had established the elements necessary for a prescriptive easement over the driveway compels the similar conclusion that they proved the necessary elements to establish adverse possession of the driveway as opposed to a mere right to use the driveway.

Although we agree that the evidence does indicate that any maintaining or mowing of the area between the ditch beside the driveway and the Harbour fence was performed by both the Gil-breaths and the Harbours, Richard Har-bour admitted that he did not maintain the area between the ditch and the driveway and admitted that the driveway was the Gilbreaths’ driveway. Thus, we cannot understand how the trial court could have determined that the Gilbreaths had not satisfied their burden of proving “actual, hostile, open, notorious, exclusive, and continuous possession” of the driveway itself and the property between the driveway and the ditch. In fact, regarding the driveway itself, the trial court’s judgment states that “[t]he evidence establishes that the [Gilbreaths] and the [Harbours] and their respective predecessors considered the traveled way to be the [Gilbreaths’] driveway, and that it was located on the [Gilbreaths’] property.”

The trial court’s focus on the Gil-breaths’ intent while they maintained the area between the driveway and the Har-bour fence is relevant; however, the evidence relating to the Gilbreaths’ intent, both subjective and objective, does not support the judgment in this case. “[I]t is the adverse possessor’s intent to assert dominion over the property that causes his possession to be deemed ‘hostile.’ ” Sparks v. Byrd, 562 So.2d 211, 216 (Ala.1990). The trial court noted that the Gilbreaths had, in fact, mowed and maintained the area between “the quarter section line and the [Harbour] fence.” However, the trial court then stated that

“while the [Gilbreaths] may have had a subjective intent to claim the disputed area as their own, there was no objective indication by the [Gilbreaths] that they mowed the area in question with the intent to claim the same by adverse possession. Without the [Gilbreaths’] having manifested such an intent, it was reasonable for the [Harbours] to allow the [Gilbreaths] to mow along the driveway as a gesture of neighborly coexistence.”

The testimony does not support this conclusion. The Gilbreaths’ presented testimony indicating that both they and their predecessors in title had believed either the ditch beside the driveway or the Har-bour fence was the property line; their acts consistent with their belief of ownership over the years are sufficient to establish the intent, or hostility, necessary for adverse possession. See Smith v. Brown, 282 Ala. 528, 537-38, 213 So.2d 374, 382-83 (1968) (quoting Sylvest v. Stowers, 276 Ala. 695, 699, 166 So.2d 423, 427 (1964) (indicating that a mistake in locating boundary line and the lack of the intent to claim the land of another does not negate the acquisition of title by adverse possession because “ ‘one does not have to be a willful landgrabber or dishonest in order to acquire title by adverse possession’ ”)). More importantly, however, the Harbours admitted that they recognized the Gil-breaths’ claim to the driveway and the area between the driveway and the ditch. See Mardis v. Nichols, 393 So.2d 976, 978 (Ala.1981) (quoting Salter v. Cobb, 264 Ala. 609, 612, 88 So.2d 845, 848-49 (1956) (“ ‘The controlling fact is one of intention and if there is an inference arising from the evidence that there was an intention on the part of the complainant to hold and enjoy the property up to the line claimed by the complainant as the true dividing line between the property, with the assent or apparent recognition of it as such on the part of respondent and his predeces sors in title for the stated period, this is sufficient to discharge the complainant’s burden of proof.’ ”) (second emphasis added)). Richard Harbour testified that his property ran from “ditch to ditch” and that he did not “bother with” or maintain the strip of land between the driveway and the ditch. He also recognized the driveway as the Gilbreaths’ driveway, although he did assert a right to use it. Notably, the trial court’s determination that the Harbours had failed to establish a prescriptive easement over the driveway because their use of the driveway was “intermittent, irregular, and not under any claim of right to do so” further supports a conclusion that the driveway, insofar as it lies outside the Gilbreaths’ deeded property, was recognized by the Harbours as being owned by the Gilbreaths and their predecessors in title either through agreement or by adverse possession. The evidence at trial demonstrates, and the Harbours’ own admissions underscore, the fact that the Gil-breaths openly, notoriously, continuously, and exclusively possessed those portions of the driveway and the area between the driveway and the ditch that lie on the Harbours’ property.

We disagree with the trial court’s conclusion that the Gilbreaths’ failed to communicate an “objective intention” to possess at least part of the disputed area. Because the testimony at trial reveals that the Harbours recognized the Gilbreaths’ claim to the driveway and the property between the driveway and the ditch, the Gilbreaths did prove the requisite elements necessary to establish adverse possession of those portions of the driveway and the area between the driveway and the ditch that are located on the Har-bours’ property. Based on the testimony at trial, the trial court’s judgment denying the Gilbreaths’ adverse-possession claim regarding those portions of the property is plainly and palpably wrong. Therefore, we reverse the judgment of the trial court insofar as it denied the Gilbreaths’ claim of adverse possession of those portions of the driveway and the area between the driveway and the ditch that are located on the Harbours’ property, and we remand this cause for entry of a judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . Although it used the term "sever” in its judgment, the trial court did not sever the claims against Timothy Harbour into a separate action under Rule 21, Ala. R. Civ. P. See Gilbreath v. Harbour, 3 So.3d 875, 876 (Ala.Civ.App.2008). Instead, the trial court appears to have chosen to "bifurcate” the trials on the separate claims under Rule 42, Ala. R. Civ. P., thus maintaining the claims in the same action. See Bryant v. Flagstar Enters., Inc., 717 So.2d 400, 402 (Ala.Civ.App.1998) (explaining the difference between ordering separate trials and severing claims in an action, including the necessity for a Rule 54(b), Ala. R. Civ. P., certification before an appeal of a judgment disposing of only some of the claims can be taken in those cases in which separate trials are ordered).

      . Although the Harbours did claim a right to use the driveway, they have not challenged the trial court's denial of their claim seeking a prescriptive easement on appeal.