author: PARKER, Justice, STUART, Justice SHAW, Justice MURDOCK, Justice

text:
    EX PARTE VEL, LLC, et al. (In re: Patricia Kilgore Kyser, as administrator ad litem of the Estate of William Henry Kilgore v. VEL, LLC, et al.)
    1150542
    Supreme Court of Alabama.
    December 30, 2016

      William H. Webster, D. Mitchell Henry, and Kayla W. Frisby of Webster, Henry, Lyons, Bradwell, Cohan & Speagle, P.C., Montgomery, for petitioners.
    David L. Selby II, Matthew J. Ford, and David A. Felice of Bailey & Glasser, LLP, Morgantown, West Virginia, for respondent.
   PARKER, Justice,

VEL, LLC (“VEL”); Montgomery Drug Co., Inc. (“MDCI”); Robert Stafford; and Erica Greene (hereinafter collectively referred to as “the petitioners”) petition this Court for a writ of mandamus directing the Montgomery Circuit Court to vacate its order of January 12, 2016, denying the petitioners’ respective motions for a summary judgment and to enter an order granting the petitioners’ respective motions for a summary judgment.

Facts and Procedural History

On June 16, 2011, William Henry Kil-gore sought to fill his prescription for ropi-nirole, a drug used to treat the symptoms of Parkinson’s disease, at the Adams Drugs pharmacy located at 35 Mitchell Drive, Montgomery, Alabama (“the Adams Drugs pharmacy”). Instead .of filling Kil-gore’s prescription with ropinirole as prescribed, the employees working at the Adams Drugs pharmacy filled Kilgore’s prescription with risperidone. On June 20, 2011, after having taken risperidone instead of ropinirole for several days, Kil-gore began experiencing negátive health consequences and sought medical assistance at the emergency room of Baptist Medical Center South (“Baptist South”) in Montgomery. Medical personnel at Baptist South - discovered that Kilgore had been taking risperidone instead of the prescribed ropinirole. It was alleged that Kil-gore suffered injuries and damages as a result of ingesting risperidone rather than ropinirole for more than four days.

At the time Kilgore’s prescription was improperly filled at the Adams Drugs pharmacy, VEL and MDCI each owned and operated at least one Adams Drugs pharmacy in Montgomery. It is undisputed that the Adams Drugs pharmacy is owned and operated by MDCI. The affidavit testimony of Terrell Lankford, a member of and the registered agent for VEL, indicates that, “[s]ince its formation in 1997, V[EL] ... has not been known as or used the name ‘Montgomery Drug Company, Inc.,’ or any variation thereof.” The affidavit testimony of Michael Vinson, a shareholder and registered agent of MDCI, indicates that, “[s]ince its formation in 1960, [MDCI] has not been known as or used the name ‘V[EL], LLC,’ or any variation thereof.” VEL and MDCI do have common ownership.

On May 30, 2012, one of Kilgore’s trial counsel, J.B. Perrine, sent a letter to Lankford “c/o VEL, LLC d/b/a Adams Drugs” in order to “discern whether [VEL] has any interest in a pre-litigation resolution of Mr. Kilgore’s claims.” In that letter, Perrine asserted that VEL “negligently refilled Mr. Kilgore’s prescription for ropinirole with risperidone.” Perrine was under the mistaken impression that VEL, instead of MDCI, owned and operated the Adams Drugs pharmacy; there is no evidence indicating why Perrine failed to determine that MDCI, rather than VEL, owned and operated the Adams Drugs pharmacy. Nor is there any evidence indicating what steps, if any, Perrine took to ascertain the identity of the owner of the Adams Drugs pharmacy before sending the May 30, 2012, letter. Perrine requested that, if Lankford was interested in reaching a settlement, Lankford “forward this letter to your insurance carrier and have your insurance carrier contact us.” Apparently, Lankford forwarded the May 30, 2012, letter to VEL’s insurer.

VEL and MDCI have the same insurer, Penn National Insurance Company (“Penn National”). On June 6, 2012, Shari Campbell, an employee in Penn National’s claims department, sent Perrine an e-mail informing him that Penn National was the insurer “for [the] Adams Drug store for the date Mr. Kilgore filled his prescription there” and that Kilgore’s medical records were needed in order to further investigate Kilgore’s claim that he had suffered damages as a result of his injuries. Campbell’s June 6, 2012, e-mail to Perrine made no reference to either VEL or MDCI. Kilgore provided Penn National with the requested medical records.

On October 24, 2012, Campbell sent another e-mail to Perrine. The subject line of Campbell’s e-mail stated: “Montgomery Drug Inc & Adams Dr.”

On October 26, 2012, Campbell, on behalf of Penn National, sent a letter to Perrine offering to settle Kilgore’s claim for $12,500. The letter that Campbell sent Perrine unequivocally identified MDCI as the insured on whose behalf Penn National was making the settlement offer. In all capital letters at the top of the letter, Campbell identified “MONTGOMERY DRUG INC” as the “[i]nsured.” Kilgore rejected Penn National’s settlement offer.

On February 27, 2013, Kilgore and Patricia Kilgore Kyser, as guardian and conservator of Kilgore (hereinafter collectively referred to as “the plaintiffs”), filed the original complaint in the action against “VEL, LLC, d.b.a. Adams Drugs, and/or Adams Drugs Good Neighbor Pharmacy,” and several fictitiously named defendants, seeking damages for Kilgore’s injuries that the plaintiffs alleged were caused by the defendants’ alleged negligence and wantonness. The complaint defined VEL as an entity that owned and operated nine pharmacy locations, including the Adams Drugs pharmacy.

On the same day, one of the plaintiffs’ trial counsel, David Selby, who was a member of the same law firm as Perrine, sent Campbell a letter informing her that the plaintiffs had filed a complaint against “Penn National’s insured.” The subject line of the letter stated: “Re: Montgomery Drug Inc., Adams Drug Company.” There is no mention of VEL in the letter.

On March 5, 2013, Reba McLain, an attorney hired by Penn National to represent its insured, MDCI, e-mailed Selby to “confirm the agreement we reached today giving us an open extension to respond to the lawsuit filed against our insured Montgomery Drug Inc.” The subject line of the e-mail stated: “Kilgore v Montgomery Drug Inc.”

It is undisputed that the two-year statute of limitations on the plaintiffs’ claims against MDCI expired in June 2013. See § 6—2—38(1), Ala. Code 1975; see also Dorsey v. Bowers, 709 So.2d 51, 56 (Ala. Civ. App. 1998)(holding that § 6-2-38(1) applies to claims of negligence and wantonness).

On July 18, 2013, VEL filed a motion to dismiss, asserting that it “has no relation or connection with any of the claims stated against it in [the plaintiffs’] complaint.” VEL stated that it was “the wrong entity against which to assert these claims.”

On July 19, 2013, after receiving VEL’s motion to dismiss, Selby sent an e-mail to VEL’s trial counsel, stating:

“This follows receipt of V[EL]’s LLC d/b/a Adams Drugs Motion to Dismiss and our phone conversation yesterday regarding the Motion. Pursuant to our conversation it is my understanding that VEL LLC actually does not own and/or operate the Adams Drugs at 35 Mitchell Drive where our client’s prescription was filled, but that ‘Montgomery Drug Company, Inc.’ owns and operates the Adams Drugs located [at] 35 Mitchell Drive. Further, it is my understanding that Penn National has retained your firm on this matter and that Penn National is-the insurance carrier for both entities, V[EL] LLC and Montgomery Drug Company, Inc. With that in mind, I would ask if you would please accept service on behalf of Montgomery Drug Company, Inc. and confirm that Montgomery Drug Company, Inc. is the correct entity. Thank you.”

VEL’s trial counsel responded: ‘Tour email below is correct to the best of my knowledge at this time. I have been authorized by [MDCI] to accept service on their behalf.”

On August, 13, 2013, the plaintiffs filed their first amended complaint, substituting MDCI for fictitiously named defendant “DD.” The plaintiffs stated that “[MDCI] d.b.a. Adams Drugs and/or Adams Drugs Good Neighbor Pharmacy ... operates the ‘Adams Drugs’ location at 35 Mitchell Drive in Montgomery, Alabama.” The first amended complaint retained VEL as a defendant; MDCI was not substituted for VEL.

On September 16, 2013, MDCI filed a motion to dismiss the plaintiffs’ claims against it. MDCI argued that the applicable statute of limitations had expired in June 2013. MDCI further argued that the plaintiffs had not amended their complaint to add MDCI as a defendant until August 13, 2013, nearly two months after the applicable statute of limitations had expired. MDCI argued that the amended complaint did not relate back to the date of the original complaint. In support of that argument, MDCI argued that the plaintiffs “had multiple documents and substantial information in their possession identifying [MDCI] as the proper defendant in this action before the statute of limitations expired” and, thus, that the complaint against MDCI was due to be dismissed.

= On September 16, 2013, VEL filed a motion to dismiss the ■ plaintiffs’ first amended complaint, arguing that it “is the wrong entity against which to assert these claims.” Both MDCI and VEL filed several subsequent motions to dismiss, in which they asserted the same basic arguments contained in their first motions to dismiss.

On November 12, 2013, the plaintiffs filed a response to MDCI’s motion to" dismiss. The plaintiffs argued that the circuit court “should deny [MDCI’s] motion to dismiss because all of [the plaintiffs’] claims in the first amended complaint relate back under Alabama Rule of Civil Procedure 15(c)(3), the misnomer rule, and Alabama fictitious party practice.” The plaintiffs argued that they had exercised due diligence in seeking to discover the identity of MDCI. In support of that argument, the plaintiffs presented the affidavit testimony of Matthew Ford, one of their trial counsel; Ford is an attorney at the same law firm as Perrine and Selby. Ford’s affidavit stated, in pertinent part:

“2. To ascertain the correct name of the legal entity which owned and/or’ operated the Adams Drugs pharmacy located at 35 Mitchell Drive, Montgomery, AL 36109, I conducted a search for Adams Drugs in the online business records database found on the Alabama Secretary of State website. The search yielded no results.
“3. I also searched the public website for Adams Drugs, www.adamsdrugs.net, and did not find any name of a legal entity for Adams Drugs, found neither the name of any parent or subsidiary company of Adams Drugs, nor any alternative names for the Adams Drugs. The public website for Adams Drugs listed nine locations for Adams Drug, including the Adams Drugs location at 35 Mitchell Drive, Montgomery, AL 36109, all doing business under the same name—Adams Drugs. The public website, did not reveal that any particular legal entity owned and/or operated any particular Adams Drugs pharmacy.
“4. I conducted an internet search for Adams Drugs and found various directory listings that included VIEL], LLC’ as an alternate name for Adams Drugs.
“5.1 searched for V[EL], LLC on the online business ■ record database of the Alabama Secretary of State. My search revealed that the listed ‘Nature of Business’ of V[EL], LLC is ‘To buy/sell & deal in drugs, pharmaceuticals & other merchandise.’ In addition, Mr. Mike Vinson was listed as a member of V[EL], LLC.”

There is no other evidence in the record indicating what measures, if any, the plaintiffs took to discover the identity of MDCI.

The plaintiffs also submitted the affidavit of Perrine. Perrine’s affidavit described his communications with Campbell in response to Perrine’s letter seeking pre-liti-gation resolution of Kilgore’s 'claims. Per-rine stated that Campbell had informed him that Penn National was the insurance carrier for VEL and that she was the adjuster handling Kilgore’s claims. Perrine stated that at no point in the course of their communications did Campbell inform him that VEL was not-the proper entity responsible for Kilgore’s injuries. Perrine asserted in his affidavit that

“having Ms. Campbell engage me in settlement discussions for months regarding Mr. Kilgore’s claims against Adams Drugs, when I had initially sent a letter to V[EL], LLC and later sent evidence showing that Mr. Kilgore had" received the wrong prescription medication •from the Adams Drugs pharmacy located at 35 Mitchell Drive, Montgomery, AL 36109, convinced me that V[EL], LLC was the proper party responsible for Mr. Kilgore’s claims and the proper insured of Penn National.”

On December 5, 2013, the plaintiffs amended their complaint for the second time to substitute Stafford and Greene for fictitiously named defendants “G” and “M.” The plaintiffs alleged that Stafford was a licensed pharmacist who was employed or worked at the Adams Drugs pharmacy and who “had involvement with and/or responsibility for the prescription error, including but not limited to filling, dispensing and/or delivering the wrong medication to Mr. Kilgore.” The plaintiffs alleged that Greene was a pharmacy technician who was employed or worked at the Adams Drugs pharmacy and who “had involvement with and/or responsibility for the prescription error, including but not limited to filling, dispensing and/or delivering the wrong medication to Mr. Kilgore.” Id.

On May 29, 2014, the plaintiffs amended their complaint for the third time to add assertions that, despite exercising due diligence, they were ignorant of MDCI’s identity until VEL filed its motion to dismiss in July 2013. Additionally, the plaintiffs stated that they were ignorant of Stafford’s and Greene’s identities until November 2013. The plaintiffs also asserted that VEL and MDCI were agents and alter egos of each other.

On May 30, 2014, VEL filed a motion for a summary judgment. In its motion, VEL argued that it “had no connection to this lawsuit” and, thus, that it was entitled to a judgment in its favor.. Specifically, VEL argued that the plaintiffs “had documents and information in their possession .as early as June 2012 that identified [MDCI], rather than V[EL], as the legal entity operating the Adams Drug pharmacy.” VEL further argued that “there were public records readily-available to [the plaintiffs] identifying [MDCI] as the legal entity operating the Adams Drugs pharmacy.!’ In support of that argument, VEL attached to its motion the affidavit testimony of Charles Wilson, the revenue manager for the City of Montgomery. Wilson’s affidavit stated, in pertinent part:

“3. The City of Montgomery License and Revenue Division keeps a listing of all current and former holders of business licenses in the City of Montgomery, Alabama.
“4. If a citizen calls the'License and Revenue Division and provides the address of a business in Montgomery, our office is capable of providing them with the name of the entity which holds the business license for that address.
“5. From 2011 to the present date, a request for the name of the entity which .holds the business license for 35 Mitchell Drive, Montgomery, Alabama, would have revealed that a.business license was issued to ‘Montgomery Drug Company d/b/a Adams Drug East’ for that address.”

Also on May 30, 2014, MDCI filed a motion for a summary judgment. MDCI argued that the plaintiffs had failed to exercise-due diligence to discover the identity of the owner and operator of the Adams Drugs pharmacy. MDCI also argued that, even though the plaintiffs had failed to exercise due diligence, they were not ignorant of MDCI’s identity. Accordingly, MDCI argued that the plaintiffs’ second amended' complaint substituting MDCI for fictitiously named defendant “DD” and any subsequent amended complaints naming MDCI as a defendant do not relate back to the filing of the original complaint under Rule 15(c)(4), Ala. R. Civ. P., and, thus, are barred by the applicable statute of limitations.

On May 30, 2014, Stafford and Greene also filed a motion for a summary judgment, arguing that the plaintiffs’ claims against them are barred by the applicable statute of limitations. Stafford and Greene alleged that the plaintiffs had failed to exercise due diligence in discovering Stafford’s and Greene’s identities. Stafford and Greene also argued that the plaintiffs had failed to promptly amend their complaint once they learned of Stafford’s and Greene’s identities. Accordingly, Stafford and Greene argued that the plaintiffs’ third amended complaint substituting Stafford and Greene for fictitiously named defendants and any subsequent amended complaints naming them as defendants do not relate back to the filing of the original complaint and, thus, are barred by the applicable statute of limitations.

On June 5, 2014, the plaintiffs filed a response to the petitioners’ outstanding motions to dismiss and motions for a summary judgment. Among other things, the plaintiffs argued that, pursuant to Rule 15(c)(3), Ala. R. Civ. P., their second amended complaint substituting MDCI for fictitiously named defendant “DD” should relate back to the filing of their original complaint. The plaintiffs also argued that, based on the doctrines of equitable tolling and equitable estoppel, their claims against MDCI should not be barred under the applicable statute of limitations.

On May 22, 2015, Kyser filed a fourth amended complaint informing the circuit court that Kilgore died on January 11, 2015, and naming Kyser, as the administrator ad litem of Kilgore’s estate, as the only plaintiff.

On January 12, 2016, following oral argument, the circuit court held, in part:

“Relation back under Rule 15[, Ala. R. Civ. P.,] is applicable to [Kyserj’s claims against MDCI because it is undisputed that MDCI knew that but for a mistake concerning its identity as the owner and operator of the Adams Drugs at 35 Mitchell Drive it would have been named as a defendant within the statute of limitations;
“[Kyser] was ignorant of MDCI’s identity as the owner and operator of the Adams Drugs at 35 Mitchell Drive- and [Kyser] exercised due diligence both before and after [she] filed [her] original Complaint to discover MDCI as the true identity of a fictitiously named party;
“MDCI and VEL have such identity of interests that relation back would not be prejudicial to MDCI;
“The statute of limitations was equitably tolled given the fact that MDCI (through Penn National and its attorney) permitted [Kyser] to continue in [her] mistaken belief that VEL was the responsible party when they knew MDCI was the owner and operator of the Adams Drugs at 35 Mitchell Drive; and
“MDCI is equitably estopped from asserting the statute of limitations defense because it obfuscated and concealed from [Kyser] that VEL was not the responsible party.”

The circuit court also denied the summary-judgment motions filed by VEL, Stafford, and Greene.

The petitioners petitioned this Court for a writ of mandamus directing the circuit court to vacate its order denying their summary-judgment motions and to enter a new order granting their summary-judgment motions.

Standard of Review

“This Court will issue a writ of mandamus when the petitioner shows: ‘“(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the-properly invoked jurisdiction of the court.” ’ Ex parte General Motors of Canada Ltd., 144 So.3d 236, 238 (Ala. 2013) (quoting Ex parte BOC Grp., Inc., 823 So.2d 1270, 1272 (Ala. 2001)). This Court generally will not review by a writ of mandamus a trial court’s denial of a motion for a summary judgment unless one of a limited number of exceptions apply. The case before us satisfies one such exception:
... In a narrow class of cases involving fictitious parties and the relation-back doctrine, this Court has reviewed the merits of a trial court’s denial of a summary-judgment motion in which a defendant argued that the plaintiff’s claim was barred by the applicable statute of limitations. See Ex parte Snow, 764 So.2d 531 (Ala. 1999) (issuing the writ and directing the trial court to enter a summary judgment in favor of the defendant); Ex parte Stover, 663 So.2d 948 (Ala. 1995) (reviewing the merits of the trial court’s order denying the defendant’s motion for a summary judgment, but denying the defendant’s petition for a writ of mandamus); Ex parte FMC Corp., 599 So.2d 592 (Ala. 1992) (same); Ex parte Klemawesch, 549 So.2d 62, 65 (Ala. 1989) (issuing the writ and directing the trial court ‘to set aside its order denying [the defendant’s] motion to quash service or, in the alternative, to dismiss, and to enter an order granting the motion’)....’”
“Ex parte Mobile Infirmary Ass’n, 74 So.3d 424, 427-28 (Ala. 2011) (quoting Ex parte Jackson, 780 So.2d 681, 684 (Ala. 2000)).”

Ex parte Nicholson Mfg. Ltd., 182 So.3d 510, 512-13 (Ala. 2015).

Discussion

The parties do not dispute that a two-year statute of limitations applies to Kyser’s claims against the petitioners. The actions alleged to have caused Kilgore’s injuries and damages occurred in June 2011; Kyser filed the original complaint on February 27, 2013. The parties likewise do not dispute that the applicable two-year statute of limitations expired in June 2013. Kyser sought to amend the complaint to substitute MDCI, Stafford, and Greene for fictitiously named defendants after the statute of limitations had expired.

The circuit court determined that the amended complaints relate back to' the date of the original complaint pursuant to Rule 15(c), Ala. R. Civ. P., which states, in pertinent part:

“(c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when
"....
“(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, except as may be otherwise provided in Rule 13(c)[, Ala. R. Civ. App.,] for counterclaims maturing or acquired after pleading, or
“(3) the amendment, other than one naming a party under the party’s true name after having been initially sued under a fictitious name, changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the applicable period of limitations or one hundred twenty (120) days of the commencement of the action, whichever comes later, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party, or
“(4) relation back is permitted by principles applicable to fictitious party practice pursuant to Rule 9(h)[, Ala. R. Civ. P.].”

It appears that the circuit court determined that the amended complaints relate back to the date of the original complaint under both Rule 15(c)(3) and (4). The petitioners argue that only Rule 15(c)(4) could apply. We agree.

Rule 15(c)(3) applies to an amendment that “changes the party or the naming of the party against whom a claim is asserted”; Rule 15(c)(3) expressly does not apply to amendments “naming a party under the party’s true name after having been initially sued under a fictitious name,” In the present case, Kyser did not seek to change the name of the party against whom she brought the original complaint. Kyser sued VEL in the original complaint. In the amended complaints, Kyser did not seek to change the name of VEL to MDCI, Stafford, or Greene but, instead, substituted MDCI, Stafford, and Greene for fictitiously named defendants; VEL remains a party to this action. Kyser sought to add MDCI, Stafford, and Greene as parties based on the “principles applicable to fictitious party practice.” Rule 15(c)(4). Accordingly, under Rule 15(c)(4), Kyser’s amendments substituting MDCI, Stafford, and Greene for fictitiously named defendants relate back to the date of the original complaint only if she satisfied the requirements of Rule 9(h), Ala. R. Civ. P. See Ex parte Noland Hosp. Montgomery, LLC, 127 So.3d 1160, 1169 (Ala. 2012)(“An amendment merely substituting a named party for a fictitiously named party relates back only if the provisions of Rule 9(h) are satisfied.”), and Mitchell v. Thomley, 98 So.3d 556, 561 (Ala. Civ. App. 2012)(“The Committee Comments on the 1978 Adoption of Rule 15, Ala. R. Civ. P., indicate that the provisions of Rule 15(c)(3) ‘per-mite 3 an amendment to relate back which substitutes the real party in interest for a named plaintiff.’ (Emphasis added.) Such an amendment, which changes a named party, relates back only if the requirements of Rule 15(c)(3) are met. Conversely, an amendment merely substituting a real party for a fictitiously named party relates back if the provisions of Rule 9(h) are satisfied. Committee Comments on 1973 Adoption.”). We will analyze whether Kyser’s amendments substituting MDCI, Stafford, and Greene for fictitiously named defendants relate back to the filing of the original complaint under Rule 15(c)(4); Rule 15(c)(3) does not apply in this case.

In Ex parte Nicholson, supra, we set forth the following applicable law:

“Rule 9(h), Ala. R. Civ. P., provides: “‘When a party is ignorant of the name of an opposing party and so alleges in the party’s pleading, the opposing party may be designated by any name, and when the party’s true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.’
“This rule permits a party who is ‘ignorant of the name of an opposing party’ to identify that party by a fictitious name. Once the true name of the opposing party is discovered, the party may amend the pleadings to substitute that true name. Rule 15(c)(4), Ala. R. -Civ. P., provides that such an amendment shall ‘relate[ ] back to the date of the original pleading when ... relation back is permitted by principles applicable to fictitious party practice pursuant to Rule 9(h).’
“ ‘However, the relation back principle applies only when the plaintiff “is ignorant of the name of an opposing party.” Rule 9(h); Harmon v. Blackwood, 623 So.2d 726, 727 (Ala. 1993) (“In order to invoke the relation-back principles of Rule 9(h) and Rule 15(c), a plaintiff must ... be ignorant of the identity of that defendant....'”); Marsh v. Wenzel, 732 So.2d 985 (Ala. 1998).’
“Ex parte General Motors[ of Canada Ltd.], 144 So.3d [236,] 239 [ (Ala. 2013) ].
“ ‘ “The requirement that the plaintiff be ignorant of the identity of the fictitiously named party has been generally explained as follows: ‘The correct test is whether the plaintiff knew, or should have known, or was on notice, that the substituted defendants were in fact the parties described fictitiously.’ Davis v. Mims, 510 So.2d 227, 229 (Ala. 1987)....’”
“Ex parte Mobile Infirmary[ Ass’n], 74 So.3d [424,] 429 [(Ala. 2011)] (quoting Crawford v. Sundback, 678 So.2d 1057, 1060 (Ala. 1996)(emphasis added)).
“In addition to being ignorant of the fictitiously named party’s identity, the plaintiff has a duty to exercise ‘due diligence’ in identifying such a defendant. Ex parte Mobile Infirmary, 74 So.3d at 429; Crowl v. Kayo Oil Co., 848 So.2d 930, 940 (Ala. 2002). It is incumbent upon the plaintiff to exercise due diligence both before and after the filing of the complaint. Ex parte Ismail, 78 So.3d 399 (Ala. 2011). Only if the plaintiff has acted with , due diligence in discovering the true identity of a fictitiously named defendant will an amendment substituting such a party relate back to the filing of the original complaint. Ex parte Mobile Infirmary, 74 So.3d at 429. Therefore, if at the time the complaint is filed, a plaintiff knows the identity of the fictitiously named party or should have discovered that party’s identity, relation back is not permitted and the running of the statute of limitations is not tolled:
“ ‘[A]n amendment substituting a new defendant in place of a fictitiously named defendant will relate back to the. filing of the original complaint only if , the plaintiff acted with “due diligence in identifying the fictitiously named defendant as the party the plaintiff intended to sue.” Ignorance of the new defendant’s identity is no excuse if the plaintiff should have known the identity of that defendant when the complaint was filed.... ’
74 So.3d at 429 (quoting Ex parte Snow, 764 So.2d 531, 537 (Ala. 1999)(em-phasis added)).”

182 So.3d at 513-14.

We will first address the petitioners’ argument as it relates to MDCI. The petitioners argue that Kyser was not ignorant of MDCI at the time that she filed the original complaint. The petitioners argue that, before Kyser filed the original complaint, she had received several communications identifying MDCI. Specifically, Kyser’s counsel received e-mail communications mentioning MDCI. Kyser’s counsel also received a letter , from Campbell offering to settle the claims; this letter unequivocally identified MDCI as the insured on whose behalf Penn National was acting. In all capital letters at the. top of the letter, Campbell identified “MONTGOMERY DRUG INC” as the “insured.” Further, and perhaps most, significantly, on the day that Kyser filed the original complaint, Kyser’s trial counsel sent Campbell a letter in which the subject line of the letter stated: “Re: Montgomery Drug Inc., Adams Drug Company.”

We agree with the petitioners. The undisputed evidence indicates that Kyser was not ignorant of MDCI at the time that she filed the original complaint. Campbell’s letter specifically named MDCI as the insured on whose behalf Penn National was acting. Further, the letter to Campbell notifying Campbell that the action had been commenced against VEL specifically identified MDCI. That evidence indicates that Kyser actually “knew, or should have known,” of MDCI’s identity at the time that she filed the original complaint. Davis v. Mims, 510 So.2d 227, 229 (Ala. 1987). Moreover, the numerous communications sent to Kyser’s counsel mentioning MDCI are evidence indicating that Kyser was at least “on notice” of MDCI’s identity. Id The undisputed evidence indicates that Kyser knew, should have known, or was on notice that MDCI was the proper party to sue at the time that she filed the original complaint. Accordingly, because Kyser was not ignorant of MDCI’s identity before the statute of limitations expired, the circuit com! had no discretion other than to grant MDCI’s summary-judgment motion in its favor on the statute-of-limitations ground.

The petitioners also argue that Kyser failed to exercise due diligence in identifying MDCI. However, because the petitioners have demonstrated that Kyser was not ignorant of MDCI’s identity, we need not consider further whether Kyser failed to exercise due diligence in identifying MDCI. See Patterson v. Consolidated Aluminum Corp., 101 So.3d 743, 747 (Ala. 2012)(“The absence of evidence establishing any one of the[ ] factors [pertaining to relation-back principles] is sufficient to support a trial court’s judgment disallowing the outside-the-limitations-period substitution.”).

Now we turn to whether the amended complaint substituting Stafford and Greene for fictitiously named defendants relates back to the filing of the original complaint. The petitioners do not dispute that Kyser was ignorant of Stafford’s and Greene’s identities at the time she filed the original complaint, i.e., the petitioners do not argue that Kyser “knew, or should have known, or was on notice” of Stafford’s and Greene’s identities at the time she filed the original complaint. Davis v. Mims, 510 So.2d at 229. Instead, the petitioners argue that Kyser’s “failure to use due diligence in joining MDCI led directly to the delay in identifying” Stafford and Greene and that Kyser failed to promptly amend her complaint to substitute Stafford and Greene for fictitiously named defendants once she learned of Stafford’s and Greene’s identities. The petitioners’ petition, at p. 20.

Concerning their argument that Kyser failed to exercise due diligence to identify Stafford and Greene, the petitioners do not argue that Kyser could have identified Stafford and Greene before Kyser added MDCI as a party. Instead, the petitioners argue only that Kyser “waited nearly two months before issuing any discovery to [MDCI] requesting the identity of MDCI employees who might be potential parties to the suit.” The petitioners’ petition, at p. 20. This is the entirety of their argument regarding their assertion that Kyser failed to exercise due diligence in identifying Stafford and Greene.

The petitioners’ argument does not establish a clear legal right to the relief they seek. Concerning due diligence, this Court has stated that, “if at the time the complaint is filed, a plaintiff knows the identity of the fictitiously named party or should have discovered that party’s identity, relation back is not permitted and the running of the statute of limitations is not tolled.” Ex parte Nicholson, 182 So.3d at 514 (emphasis omitted). The petitioners do not argue that Kyser could have discovered the identities of Stafford and Greene before MDCI was substituted for fictitiously named defendant “DD”; instead, they argue that Kyser failed to exercise due diligence because she waited two months to serve MDCI with discovery requests asking MDCI to identify MDCI employees who might be potential parties to the action. The petitioners have not cited any authority to support them assertion that Kyser’s two-month delay in serving discovery requests on MDCI is a failure to exercise due diligence to discover the identities of Stafford and Greene. The petitioners have therefore not demonstrated a clear legal right to the relief they seek.

Next, we address the petitioners’ argument that the amendment substituting Stafford and Greene for fictitiously named defendants should not be found to relate back to the filing of the original complaint because, the petitioners argue, Kyser failed to promptly amend the complaint to substitute Stafford and Greene for fictitiously named defendants once Kyser learned of Stafford’s and Greene’s identities. The petitioners argue that, “once [Kyser] became aware of Stafford and Greene’s identities, she waited another month before amending her complaint to substitute Stafford and Greene for fictitiously named defendants.” The petitioners’ petition, at p. 20. The petitioners argue that the one-month delay is evidence establishing that Kyser failed to promptly amended the complaint once she knew the identities of Stafford and Greene.

The only authority relied upon by the petitioners in support of their argument is Patterson, supra. In Patterson, the plaintiffs in that case waited approximately 15 months after they should have known the identities of the fictitiously named defendants before they amended their complaint. Based on that 15-month delay, this Court determined that the plaintiffs had failed to promptly amend their complaint once they learned of the identities of the fictitiously named defendants that they had named in their original complaint. The present case is distinguishable from Patterson. The petitioners allege that Kyser delayed substituting Stafford and Greene for fictitiously named defendants for one month. The delay in this case is far less than the 15-month delay in Patterson. We cannot say that the holding in Patterson, the only case relied upon by the petitioners in support of their argument, supports the determination that Kyser failed to promptly amend the complaint in this case.

The petitioners’ arguments concerning Stafford and Greene'do not demonstrate that the petitioners have a clear legal right to the relief they seek. The petitioners have not directed this Court’s attention to sufficient evidence or authority supporting their argument that the amended complaint substituting Stafford and Greene for fictitiously named defendants does not relate back to the filing of the original complaint. Accordingly, we deny this aspect of the petitioners’ petition..

Next, the petitioners argue that the circuit court erred in determining that the applicable statute of limitations was tolled by the doctrines of equitable tolling and equitable estoppel. The petitioners raise this argument regarding the amended complaints substituting MDCI, Stafford, and Greene for fictitiously named defendants. However, we need not consider this argument as to the amendment substituting Stafford and Greene for fictitiously named defendants because, as we determined above, the petitioners have failed to demonstrate that that amendment does not relate back to the original complaint under the principles of relation back. Accordingly, we will consider the petitioners’ argument only as it pertains to the amendment substituting-.MDCI for fictitiously-named defendant “DD.”

In Weaver v. Firestone, 155 So.3d 952, 957-58 (Ala. 2013), this Court discussed the equitable-tolling doctrine:

“ ‘[A] litigant seeking equitabie tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ as to the filing of his action. Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). In Ex parte Ward, 46 So.3d 888 (Ala. 2007), this Court ‘[held] that equitable tolling is available in extraordinary circumstances that are beyond the petitioner’s control and that are unavoidable even with the exercise of diligence.’ 46 So.3d at 897. The Court noted, that in determining whether equitable tolling is applicable, consideration must be given as .“‘to whether principles of ‘equity would make the rigid application of a limitation period unfair’ and whether the petitioner has ‘exercised reasonable diligence in investigating and bringing [the] claims.’”’ Id. (quoting Fahy v. Horn, 240 F.3d 239, 245 (3d Cir. 2001), quoting in turn Miller v. New Jersey Dep’t of Corr., 145 F.3d 616, 618 (3d Cir. 1998)); see also Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (‘We have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant- has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass. We have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights.’ (footnotes omitted)). This Court acknowledged in Ward that ‘ “the threshold necessary to trigger equitable tolling is very high, lest, the exceptions swallow the rule.” United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000).’ 46 So.3d at 897. The plaintiff.
“‘bears the burden of demonstrating ... that there are ... extraordinary circumstances justifying the application of the doctrine of equitable tolling. See Spitsyn v. Moore, 345 F.3d [796,] 799 [ (9th Cir. 2003) ] (holding that the burden is on the petitioner for the writ of habeas corpus to show that the exclusion applies and that the “extraordinary circumstances” alleged, rather than a lack of diligence on his part, were the proximate cause of the untimeliness); Drew v. Department of Corr., 297 F.3d 1278, 1286 (11th Cir. 2002) (“The burden of establishing entitlement to this extraordinary remedy plainly rests with the petitioner.”).’
“Ward, 46 So.3d ‘at 897. If is'well settled that whether equitable tolling is applicable in a case generally involves a ‘ “fact-specific inquiry.” ’ See, e.g., Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003); Put[man] v. Galaxy 1 Marketing, Inc., 276 F.R.D. 264, 275 (S.D. Iowa 2011) (‘[R]esolution of the issue is fact-specific.’); see also Transport Ins. Co. v. TIG Ins. Co., 202 Cal.App.4th 984, 1012, 136 Cal.Rptr.3d 315, 337 (2012) (‘[W]e are hard pressed to think of more fact-specific issues than “accrual” and [equitable] “tolling.”’).”

The petitioners argue that Kyser failed to present any evidence indicating that an “extraordinary circumstance” kept Kyser from learning the identity of MDCI before the statute’ of limitations, expired. Kyser argues that “the facts here plainly establish that MDCI mislead [sic] [Kyser].” Kyser’s answer, at p. 16. In support of her argument, Kyser points to the facts that Penn National engaged in settlement discussions with Kyser’s counsel and made settlement offers.- Kyser’s argument is not persuasive. Penn National referenced MDCI -numerous times in its communications with Kyser’s counsel and even identi-fled MDCI as its insured in a letter Campbell sent to Kyser’s counsel offering to settle the claims. Kyser has not directed this Court to any evidence indicating that Penn National, or anyone else, made a false representation to prevent Kyser from discovering the identity of MDCI. In fact, as set forth above, Kyser was not ignorant of MDCI’s identity, as evidenced by her counsel’s letter to Campbell, which referenced MDCI in the- subject line of the letter, informing Campbell that a complaint-had been filed against VEL. The petitioners have demonstrated that-Kyser did not pursue her rights diligently and that there was no “extraordinary circumstance” standing in the way of Kyser’s discovery of the identity of MDCI before the statute of limitations expired.

The standard concerning the doctrine of equitable estoppel is similar. Regarding the doctrine of equitable estoppel, this Court stated in McCormack v. AmSouth Bank, N.A., 759 So.2d 538, 543 (Ala. 1999):

“In City of Birmingham v. Cochrane Roofing & Metal Co., 547 So.2d 1159 (Ala. 1989), this Court summarized the law applicable in- situations where one party asserts equitable estoppel as a bar to another party’s pleading the statute of limitations as a defense:
“ ‘In Mason v. Mobile County, 410 So.2d 19 (Ala. 1982), this Court held that if a defendant either fraudulently or innocently represents to the plaintiff that he will remedy a problem, and relying on these representations the plaintiff is induced not to file a lawsuit or take any action, the defendant may be estopped from raising the statute of limitations as a defense. Additionally, in Arkel Land Co. v. Cagle, 445 So.2d 858 (Ala. 1983), we held that if a defendant represents that a lawsuit is unnecessary because he intends to take care of the problem he is likewise estopped from raising the statute of limitations as a defense.’
“Cochrane Roofing, 547 So.2d at 1167.”

Kyser argues that “[t]he circuit court correctly found that [the] [petitioners concealed MDCI’s identity and misrepresented V[EL]’s role by engaging in settlement discussions they had no intention of following through on just to stall discovery.” Kyser’s answer, at pp. 19-20. Kyser directs this Court’s attention to two communications from Penn National to'Kyser’s counsel in support of her argument that MDCI sought to conceal its identity. The first piece of evidence referenced by Kyser is the letter that Campbell sent to Kyser’s trial counsel on February 27, 2013, offering to settle the claims. In that letter, Campbell specifically identified MDCI as Penn National’s insured, on whose behalf Penn National was acting. The other piece of evidence referenced by Kyser is an email sent on March 5, 2013, from McLain, an attorney hired by Penn National to represent MDCI, to Kyser’s trial counsel to “confirm the agreement we reached today giving us an open extension to respond to the lawsuit filed against our insured Montgomery Drug Inc.” (Emphasis added.) The subject line of the e-mail stated: “Kilgore v Montgomery Drug Inc.” The evidence relied upon by Kyser does not demonstrate that MDCI sought to conceal its identity; it is evidence of éxactly the opposite. Penn National expressly named MDCI in several of its communications to Kyser’s counsel; Penn National made no false representations concerning MDCI’s identity and took no action to conceal MDCI’s identity. The petitioners have demonstrated that the doctrine of equitable estoppel does not apply to the facts presented in this case.

Lastly, the petitioners argue that, “[i]n the absence of valid claims against ... MDCI, Stafford and Greene, V[EL] is due to be dismissed.” The petitioners’ petition, at p. 30. We decline to address this argument because it is not appropriate on mandamus review. We addressed the other arguments raised by the petitioners because, although we generally do not review the denial of a summary-judgment motion by a petition for a writ of mandamus, they fit within an exception to that general rule. See Ex parte Nicholson, supra (stating that this Court will provide mandamus review of a circuit court’s denial of a summary-judgment motion in which a defendant argues that the plaintiffs claim is barred by the applicable statute of limitations when that case involves fictitiously named parties and the relation-back doctrine). The petitioners’ argument pertaining to VEL does not fit within this exception. VEL’s summary-judgment motion did not involve the relation-back doctrine; VEL simply argued that it had nothing to do with this case. The petitioners have not demonstrated that their mandamus petition concerning VEL fits within an exception to the general rule that this Court will not provide mandamus review of a circuit court’s denial of a summary-judgment motion. Therefore, this argument is not properly before us.

Conclusion

We grant the petitioners’ petition in part and deny it in part. We grant the petitioners’ petition insofar as they request that this Court issue a writ directing the circuit court to vacate its order denying MDCI’s summary-judgment motion and to enter an order granting MDCI’s summary-judgment motion. We deny the petitioners’ petition insofar as they request that this Court issue a writ directing the circuit court to vacate its order denying VEL’s, Stafford’s, and Greene’s summary-judgment motions and to enter an order granting those motions.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

Bolin, Main, and Bryan, JJ., concur.

Stuart and Shaw, JJ., concur in part and concur in the result.

Murdock, J., concurs in part and dissents in part.

STUART, Justice

(concurring in part and concurring in the result).

As to the analysis in the main opinion regarding VEL, LLC, and Montgomery Drug Co., Inc., I concur. I agree that both Robert Stafford and Erica Greene have failed to establish their right to a summary judgment, but I do not agree with the analysis in the main opinion as to that issue; therefore, I concur in the result as to that portion of the main opinion.

SHAW, Justice

(concurring in part and concurring in the result).

As to the analysis in the main opinion regarding VEL, LLC, and Montgomery Drug Co., Inc., I concur. As to the analysis regarding Robert Stafford and Erica Greene, I concur in the result.

MURDOCK, Justice

(concurring in part and dissenting in part).

As to the issue of compliance with Rule 9(h), Ala. R. Civ. P., the second of four elements that must be established is that the plaintiff “was ignorant of the defendant’s identity at the time the original complaint was filed.” Patterson v. Consolidated Aluminum Corp., 101 So.3d 743, 747 (Ala. 2012). I believe this means that the plaintiff must be ignorant of the defendant’s identity as a defendant. A plaintiff literally could know the names of hundreds or thousands of persons, corporations, and other entities. But if a plaintiff is unaware that one of those persons or entities is in fact the party that allegedly wronged the plaintiff as described in the complaint, Rule 9(h) allows the plaintiff to describe the wrongdoer with a fictitious name and then to substitute the actual name of the party described as such once the plaintiff becomes aware of that party’s identity as the wrongdoer. I therefore disagree with the discussion in the main opinion as it relates to this element.

Whether Patricia Kilgore Kyser, as administrator ad litem of the estate of William Henry Kilgore, failed to exercise due diligence to identify Montgomery Drug Co., Inc. (“MDCI”), as the defendant she intended to sue is another question. Although upon a closer examination I might be inclined to conclude that Kyser was sufficiently diligent, I do not reach that issue because in my opinion the trial court correctly applied Rule 15(c)(3), Ala. R. Civ. P.

As to this latter ground, I respectfully dissent as to the disposition of the petition as it relates to MDCI in the Court’s opinion today. I agree with the trial court that Rule 15(3)(c) is applicable. Because I believe that the prerequisites for employing Rule 15(c)(3) were met, I respectfully dissent as to that portion of the main opinion ordering the trial court to grant MDCI’s summary-judgment motion.

Because of my position with regard to the inclusion of MDCI as a defendant in this litigation, I do not reach the issues of equitable tolling and equitable estoppel, which are discussed in the main opinion.

      . The plaintiffs also sued AmerisourceBergen Drug Corporation, but that party has since been dismissed from the action.

      . In their original complaint, the plaintiffs described fictitiously named defendant "DD” as one of "those other persons or corporations who participated in or are otherwise responsible for the tortious acts referenced herein.”

      . Kyser alleges that "[m]andamus is not proper for resolving factual disputes.” Kyser’s answer, at p. 13. Kyser further alleges that the petitioners’ petition is nothing more than "a gripe about the facts of the case.” Id., at p. 14. We do not find Kyser’s argument persuasive. The operative facts of this case are not in dispute. As will be demonstrated below, the petitioners' arguments concern the circuit court’s interpretation of the law as applied to the facts. Such arguments are appropriately reviewed when-presented in a petition for a writ of mandamus.


source: Caselaw Access Project

author: THOMAS, Judge. MOORE, Judge,

license: Public Domain

text:
    Keith Joel THOMSON v. Karen Acton SHEPARD
    2150566
    Court of Civil Appeals of Alabama.
    December 9, 2016

      William N. Clark and William H. Mills of Redden, Mills, Clark & Shaw, LLP, Birmingham, for appellant.
    Stephen R. Arnold, Birmingham, for ap-pellee.
   THOMAS, Judge.

Keith Joel Thomson (“the husband”) appeals a judgment of the Jefferson Circuit Court (“the trial court”) that, among other things, awarded Karen Acton Shepard (“the wife”) alimony in gross and child support for the maintenance of the parties’ two sons (“the children”), born on May 30, 2004, and April 4, 2006, respectively. We affirm the trial court’s judgment.

Background

The parties were married in 2002. The wife filed a complaint in the trial court on April 30, 2014, seeking a divorce from the husband, custody of the children, child support, alimony, and a division of the marital property. The husband answered the wife’s complaint, and, after additional filings and orders, the wife filed a verified petition requesting that the trial court appoint a guardian ad litem to: protect the interests of the children because, she averred, the husband had been inappropriately-involving them in the divorce litigation. The trial court thereafter entered an order appointing a guardian ad litem for the children and requiring each party to deposit with the circuit-court clerk a retainer of $750 for the guardian ad htem’s services. The trial court received evidence regarding, the wife’s complaint on several separate days, beginning in March 2015 and ending in October 2015. On December 1, 2015, the trial court entered an order requiring each party to pay the guardian ad litem $7,387.50 for her services. The parties thereafter submitted payment to the guardian ad litem, and the trial court granted the guardian ad litem’s motions to condemn those payments.

On January 5, 2016, the trial court entered a judgment divorcing the parties in which it, among other things, awarded the parties joint legal custody of the children, named the wife as the “primary” physical custodian, scheduled the parties’ custodial time, ordered the husband to pay the wife $1,500 per month for each child as child support, ordered the husband to maintain health insurance for the children, ordered the husband to pay $1,000 per month as periodic alimony, and divided the marital property. Each party filed postjudgment motions pursuant to Rule 59, Ala. R. Civ. P. In her postjudgment motion, the wife requested that the trial court alter or amend particular provisions of its judgment regarding the husband’s custodial time and the children’s health insurance, and, in his postjudgment motion, the husband requested that the trial court alter or amend particular provisions of its judgment regarding child support, his custodial time, and the division of a certain retirement account. The trial court set the parties’ postjudgment motions for a hearing to be conducted on February 8, 2016.

On February 22, 2016, the trial court entered an “amended final judgment of divorce” in which it altered, among other things, particular provisions, of its judgment regarding custody of the children, the parties’ responsibilities for the children’s medical expenses, and the husband’s periodic-alimony obligation, awarded the husband “full right and title to” his retirement accounts, awarded the husband his “individual or business- accounts” as separate property, and awarded the wife $100,000 as a “monetary property settlement.” On March 7, 2016, the -wife filed a “motion to amend and/or correct the amended final judgment of divorce pursuant to Rule 60(a)[, Ala. R. Civ. P.].” The husband thereafter filed an objection to the wife’s motion in which he argued that her motion had not'been limited to a request that the trial court correct clerical errors under Rule 60(a) and that her motion should have therefore been construed as an improperly filed successive Rule 59, Ala. R. Civ. P., motion.

That same' day, the husband also filed a postjudgment motion in which he requested, among'other things, that the trial court amend its February 22, 2016, order to award the parties joint legal and physical custody of the children and “clarify a certain provision regarding the children’s medical expenses. The husband also contended that the trial court’s award of child support in the amount of $1,500 per child and its award of $100,000 to the wife as a “monetary property settlement” were not supported by the evidence presented.

On March 28, 2016, thé trial court entered an orderin which it stated:

“THE COURT, ex mero mbtu, is of the opinion that the following Order shall be entered....
“1, That the Amended Final Judgment entered by this court on February 22, 2016 ... is hereby set aside and held for naught.
“2. That the Final Judgment entered by this court on January 5, 2016 ... is hereby reinstated.
“3. That the [wifej’s Motion to Amend And/Or Correct the Amended Final Judgment of Divorce Pursuant to Rule 60(a), the [husbandj’s Objection to Amend/And Or Correct the Amended Final Judgment of Divorce Pursuant to Rule 60(a), and [the husbandj’s Motion to Alter, Vacate or Amend the Amended Final Judgment of Divorce are Moot.”

That same day, the trial court also entered an order modifying the provisions of its January 5, 2016, judgment regarding custody of the children and child support and awarding the husband the full value of his retirement accounts and the wife $100,000 as alimony in gross. The trial court’s order further stated “[tjhat all other provisions of the Final Judgment [of] Divorce entered on January 5, 2016[,j shall remain in full force and effect.”

The husband filed a notice of appeal on April 4, 2016. On appeal, the husband argues that the trial court erred in various respects. However, as a threshold matter, we must first determine from which of the trial court’s orders the husband has appealed.

Analysis

In his appellate brief, the husband states:

“This is a procedurally unusual, indeed, almost confounding case. There was a final judgment of divorce followed by three post-judgment orders which in some manner altered the previous order. ... [The husband] believes the correct analysis is that the March 28 ex mero motu order is void and that the final judgment in this case is the February 22 Amended Judgment.”

In light of his concerns, the husband’s appellate brief addresses in alternative fashion what he contends are errors in both the trial court’s February; 22, 2016, order and its March 28, 2016, orderp. In her appellate brief, the wife responds: .

“The trial court was vested with the authority and jurisdiction to enter the Order of March 28, 2016[,j setting aside the Amended Judgment dated February 22, 2016[,j and reinstating the Final Judgment of Divorce dated January 5, 2016[,j as modified by a second March 28, 2016[,j Order. The Final Judgment dated January [6], 2016[,j as modified is the operative final judgment applicable to the parties and this appeal.”

We first note that the husband’s notice of appeal was timely filed on April 4, 2016, whether his appeal was taken from the trial court’s February 22, 2016, order or its final March 28, 2016, order and that he has therefore properly invoked this court’s subject-matter jurisdiction. See Rule 4, Ala. R. App. P.

We next consider whether, as the husband contends, the trial court’s March 28, 2016, orders were void and- whether his appeal was therefore taken from the trial court’s February 22, 2016, order. In support of his conclusion, the husband argues that the trial court’s February 22, 2016, order ruled upon the parties’ post-judgment motions that were pending at that time, that the trial court primarily granted the relief that he had requested in his postjudgment motion, and that, thus, he concludes, the trial court’s February 22, 2016, order also denied the relief that the wife had requested in her postjudgment motion. Citing, among other cases, Pinkerton Security and Investigation Services, Inc. v. Chamblee, 961 So.2d 97, 101-02 (Ala. 2006), the husband argues that the trial court lost subject-matter jurisdiction over the action when it denied the wife’s postjudgment motion and, therefore, could not have properly entered its March 28, 2016, orders ex mero motu. In her appellate brief, the wife responds:

“While the Trial Court did state in one of its Orders of March 28, 2016, that the Order was ‘ex mero motu,’ ... that Order was, in fact, in response to timely filed pending motions from both parties .... The ‘[wifej’s Motion’ and the ‘[husband]’s Objection’ and ‘Motion’ were ‘moot’ only because the Trial Court entered its Modified Judgment of Divorce ... which in fact addressed the pending motions.... This is not a situation where there were no post-trial motions, and the trial court, on its own and not in response to any then pending motion or motions, entered an order in March correcting a prior order in January.”

In his reply brief, the husband responds:

“[One of the trial court’s March 28, 2016, orders] explicitly denies that it was based on motions filed by either party after February 22nd because it holds that the motions filed by the [w]ife and [the h]usband were moot and not a basis for the ex mero motu order.
“The Third Order (March 28) is more than 30 days after the Second Order (February 22) which it set aside and held for naught. The trial court unquestionably had no jurisdiction to enter an ex mero motu order on March 28, 2016[,] setting aside a February 22, 2016[,] order because it was more than 30 days after the February 22nd order and was not based on any post-judgment motions. See Vann v. Cook, [989 So.2d 556, 559 (Ala. R. Civ. App. 2008)].”

The husband’s conclusion is wrong because it is derived from an incorrect premise. “[A] trial court retains the power to correct sua sponte any error in its judgment that comes to its attention during the pendency of a party’s Rule 59(e) motion to alter, amend, or vacate the judgment, regardless of whether the error was alleged or not in the motion.” Henderson v. Koveleski, 717 So.2d 803, 806 (Ala. Civ. App. 1998)(emphasis added). After the trial court entered its February 22, 2016, order, the husband filed his post-judgment motion on March 14, 2016. The trial court’s March 28, 2016, orders were therefore entered during the pendency of the husband’s postjudgment motion, and the trial court retained the power to correct errors in its judgment on its own initiative during that time, regardless of whether the husband had alleged those errors in his postjudgment motion.

The trial court chose to correct what it determined to be errors in its judgment by setting aside its February 22, 2016, order and reimplementing the provisions of the January 5, 2016, judgment, subject to certain modifications that it deemed appropriate and set out in a separate order. We see no inherent error in the trial court’s decision to amend its judgment in this fashion. Indeed, the husband concedes in his appellate brief that, “[i]n most respects, the Amended Judgment entered February 22, 2016[,] and the re-instated and modified January 5, 2016[,] order pursuant to the March 28, 2016[,] order are identical.” Thus, we conclude that the trial court properly exercised its subject-matter jurisdiction over the action when it entered its March 28, 2016, order modifying certain provisions of its January 5, 2016, judgment, and the husband’s timely appeal properly invoked this court’s subject-matter jurisdiction to review the trial court’s divorce judgment, as amended by the March 28,2016, order.

We next turn to the husband’s substantive appellate arguments. The husband argues that the trial court erred by appointing the guardian ad litem, by ordering the parties to pay her fee, and by failing to follow the child-support guidelines set forth in Rule 32, Ala. R. Jud. Admin. He also argues that the trial court’s awards of child support and alimony in gross were unsupported by the evidence.

The husband first argues that the trial court erred by appointing the guardian ad litem and ordering him to pay a portion of her fee. “Generally, a trial court has the authority to appoint a guardian ad litem to represent a child in a divorce proceeding and to order a reasonable fee to be paid for the guardian ad litem’s services. See § 26-2A-52, Ala. Code 1975, and Rule 17, Ala. R. Civ. P.” Roberts v. Roberts, 189 So.3d 79, 81 (Ala. Civ. App. 2015). The husband has developed no meaningful argument in support of his assertion that the trial court erred by appointing the guardian ad litem. “When an appellant fails to properly argue an issue, that issue is waived and will not be considered.” Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala. Civ. App. 1996).

Citing, among other cases, Cochran v. Cochran, 49 Ala.App. 178, 269 So.2d 884, 896 (1970), overruled on other grounds, the husband also specifically argues, however, that the trial court’s appointment of the guardian ad litem was not mandatory and that “it [wa]s error to impose a guardian ad litem fee upon a party to litigation where the appointment of a guardian ad litem [wa]s not required.” However, the record shows that the husband did not argue to the trial court that it had erred by ordering him to pay a portion of the guardian ad litem’s fee. “This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.” Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala. 1992). Thus, we cannot reverse the trial court’s judgment for that reason.

The husband next argues that the trial court erred by failing to follow the child-support guidelines set forth in Rule 32, Ala. R. Jud. Admin. Citing, among other cases, Farnell v. Farnell, 3 So.3d 203, 206 (Ala. Civ. App. 2008), he specifically contends that the trial court’s failure to follow the child-support guidelines, or, alternatively, to explain why it did not follow the child-support guidelines, constituted reversible error. In its judgment, the trial court ordered the husband to pay to the wife $1,500 “per month per child for the support and maintenance of the minor children” and stated: “The Child support herein was not determined by application of the child support guidelines established in Rule 32, [Ala. R. Jud. Admin.,] as the [husbandj’s income exceeds the Child support guidelines.”

The husband cites Rule 32(A), Aía. R. Jud. Admin., and contends: “This conclusionary statement is not an adequate ‘written finding on the record indicating that the application of the guidelines would be unjust or inappropriate.’ ” However, the husband’s argument ignores Rule 32(C)(1), Ala. R. Jud. Admin., which states, in pertinent part: “The court may use its discretion in determining child support in circumstances where combined adjusted gross income ... exceeds the uppermost level of the schedule.” Because it determined that the husband’s adjusted gross income exceeded the uppermost level of the child-support guidelines, the trial court was authorized to use its discretion when calculating child support, and its judgment cannot be reversed simply because it did not make a written finding that abiding by the child-support guidelines would be unjust or inequitable. See Derie v. Derie, 689 So.2d 142, 145 (Ala. Civ. App. 1996)(“[T]he employment income of the parents placed the determination of the child support obligation beyond the scope of the guidelines; therefore, it is unnecessary for the trial court to make any written finding regarding why the guidelines would be unjust or inappropriate.”).

The husband next argues that the trial court’s child-support award was not supported by sufficient evidence regarding the children’s needs or his ability to pay;

“Under the well-established ore tenus rule, the trial court’s judgment is presumed correct; this court will not reverse the judgment absent a showing that the trial court’s findings are plainly and palpably wrong or that the trial court abused its discretion. Tompkins v. Tompkins, 843 So.2d 759, 764 (Ala. Civ. App. 2002). Moreover, matters relating to child support ‘rest soundly within the trial court’s discretion, and will not be disturbed on appeal absent a showing that the ruling is not supported by the evidence and thus is plainly and palpably wrong.’ Bowen v. Bowen, 817 So.2d 717, 718 (Ala. Civ. App. 2001).”

Scotty. Scott, 915 So.2d 577, 579 (Ala. Civ. App. 2005).

“When the parties’ combined income exceeds the uppermost limit of the child-support schedule, the determination of a child-support obligation is within the trial court’s discretion. Floyd v. Abercrombie, 816 So. 2d 1051, 1057 (Ala. Civ. App. 2001); Dyas v. Dyas, 683 So.2d 971 (Ala. Civ. App. 1995). ‘[A] trial court’s discretion is not unbridled and ... the amount of child support awarded must relate to the reasonable and necessary needs of the children as well as to the ability of the obligor to pay for those needs.’ Dyas v. Dyas, 683 So.2d at 973.”

McGowin v. McGowin, 991 So.2d 735, 741 (Ala. Civ. App. 2008).

Regarding the children’s needs, we note,the following testimony from the wife when asked. about the “average monthly cost .... for the, running of [her] household”: “I can tell you what it has been which is about, not including the things that [the husband’s] father pays for, about three thousand, or four thousand, five thousand dollars a month.” She also testified that “[the husband] gave [her]—frequently gave [her], probably weekly, gave [her] a gift card to Whole Foods for $500 and [she] would use that to .buy [their] groceries.” The husband’s testimony and credit-card statements that were admitted into evidence also support the trial court’s conclusion, that the parties’ monthly expenses averaged at least $3,000.

For instance, the husband offered as evidence a list that reflected grocery expenses for each month in 2014 and testified that those amounts represented the amounts that he had spent on “food for the family for those weeks.” When the amounts are totaled, that list indicates that the husband spent an average of more than $600 per month for groceries during 2014. Furthermore, summaries of the husband’s credit-card expenses for 2012, 2013, and 2014 were admitted into evidence, and the annual totals of those expenses were $51,500.61, $83,949.74, and $214,821.23, respectively. The husband testified that he used that credit card for business, personal items, and “family or household expenses.” Based on the evidence before it, we cannot conclude that the trial court’s determination that $3,000 per month represented expenses that were related to the reasonable and necessary needs of the children was plainly and palpably wrong such that its judgment should be reversed for that reason.

Regarding the husband’s ability to pay, we note that the husband testified that he was a professional writer, and the wife testified that she was unemployed throughout the marriage and that she had remained so during the pendency of the divorce action. Rule 32 provides child-support guidelines for combined adjusted gross income totaling, at the uppermost limit, $20,000. Thus, the question is whether the trial court’s finding that the husband’s monthly income exceeded $20,000 was supported by sufficient evidence. The husband argues that it was not, and he notes that the trial court’s finding regarding his income contradicts the information that he provided in .his Form C£f-41, in which he averred that his average monthly gross income from 2011. through 2015 was $5,839.03. In response, the wife contends that, in addition to the income noted by the husband in his Form CS-41,'the trial court properly considered investment income, capital gains, and gifts from the husband’s father when determining the husband’s monthly income. See Rule 32(B)(2)(a), Ala. R. Jud. Admin.

The parties’ joint federal income-tax returns from 2011, 2012, and 2013 were admitted into evidence and indicated that, for those years, they had reported an annual income of $83,394, a loss of $8,510, and an annual income of $20,658, respectively. The parties’ draft Form 1040 for 2014 was also admitted into evidence, which the husband testified that the parties intended to file jointly. The parties’ draft Form 1040 for 2014 indicated that they intended to report a gross income $155,050 for that period, an amount that included wages, dividends, capital gains, and income from an S corporation. The wife also testified that, after reaching the age of 50 in April 2015, she had obtained unrestricted access to funds totaling $220,000 that had previously been held in trust through a fund that had been created by her parents.

The husband testified that he did not earn a regular salary and that, “the vast majority of time,” he worked on behalf 20th Century Hound Entertainment Corporation (“20th Century Hound”), an entity that he had created and of which he was the sole shareholder. Upon his completion of various contractual writing projects, the husband testified, 20th Century Hound would receive payment for those projects and a portion of his income was paid from those funds. Regarding those funds, the husband gave the following testimony upon examination by his attorney:

“Q. Now, [the wife] testified that 2009-2012 you didn’t have a salary. You got'a check for twenty dollars every so often. 2009 to 2012 what was the source of your monies—was it true that you didn’t have any income coming in at that time?
“A. No, sir.
“Q. What was the source of your money at that time?
“A. Writing magazine articles and books.
“Q. And during that time period did you get paid for any book?
“A. Yes, sir. Once a Spy, Twice a Spy and I am not sure whether Seven Grams of Lead was in that period or subsequent. Probably that period.
“Q. How were you paid?
“A. They sent a check to my talent agency and talent agency takes out then-commission and sends a check to me.
“Q. And what was the total that you were paid during that time?
“A. Between—around [$700,000].
“A. They went—my corporation I should say received the money. So my d/b/a 20th Century Hound account at Alliance Bernstein.
“Q. And what is Alliance Bernstein.
“A. It is a bank.
“Q. Now, was that money you were living off during 2009 to 2012?
“A. For the most part, yes, sir.”

An account summary was also entered into evidence that the husband testified had been provided by “Alliance Bernstein.” The summary included nine accounts, four of which were maintained for the benefit of the children; the combined balance of those accounts totaled approximately $414,698. Almost the entirety of that balance was composed of savings for the children’s college education that had been primarily deposited by the husband’s father. The husband’s remaining five accounts were composed of retirement and investment accounts. As of October 13, 2015, the combined balance of those accounts was $1,231,873, and the record indicates that the husband had withdrawn approximately $50,000 from an investment account during the pendency of the divorce action, leaving a remaining balance of $875,360 in that account. The husband also testified that, since 2012, his father had effectively loaned him approximately $846,168, much of which had been accumulated by the husband’s use of credit cards, the balances of which had been paid by his father. An “amended, restated, and consolidated promissory note” that had been executed on June 4, 2015, was admitted into evidence as proof of the husband’s intention to repay that debt to his father no later than March 2038.

“[T]he amount of the f[ormer husband]’s gross income under Rule 32 is a matter to be determined by the trier of fact.” Hood v. Hood, 23 So.3d 1160, 1165 (Ala. Civ. App. 2009). Furthermore, “[the Rule 32] guidelines require the trial court to consider the resources of the parents, not simply their incomes, in making a determination of child support.” Ex parte St. Clair Cty. Dep’t of Human Res., 612 So.2d 482, 483 (Ala. 1993). The record clearly supports the conclusion that the parties had access to substantial assets and that the husband had demonstrated an ability to earn a substantial income during the marriage. Additionally, to the trial court, the husband’s willingness and ability to withdraw $50,000 from his investment account during the pendency of the divorce action could have weighed against concluding that his assets were so illiquid that he was financially unable to continue paying $3,000 per month for the maintenance of the children. In short, we cannot conclude that the trial court’s child-support award was so unsupported by the evidence that it was clearly erroneous or an abuse of discretion, and we cannot reverse its judgment for that reason.

Finally, the husband argues that the trial court’s award of $100,000 to the wife as alimony in gross was unsupported by the evidence.

“Our standard of review of issues charging abuse of discretion in the awarding of alimony in gross or division of property is time-worn, but unchanged, in thousands of cases. That standard is that the judgment of a trial judge rendered after hearing evidence presented ore tenus is presumed correct on appeal and will not be reversed unless it is so unsupported by the evidence as to be unjust and a palpable abuse of judicial discretion.”

McDaniel v. McDaniel, 621 So.2d 1328, 1329 (Ala. Civ. App. 1993).

“The only limitation on that discretion .is that the division of property be equitable under the circumstances of the particular case, and the task of determining what is equitable falls to the trial court. Ross v. Ross, 447 So.2d 812 (Ala. Civ. App. 1984).... In making the division, the trial court may consider several factors, including the parties’ respective present and future earning capacities, their age and health, their conduct, the duration of the marriage, and the value and type of .marital property. Lutz v. Lutz, 485 So.2d 1174 (Ala. Civ. App. 1986).”

Cantrell v. Cantrell, 773 So.2d 487, 489-90 (Ala. Civ. App. 2000)(emphasis added). In support of his argument, the husband asserts that

“[t]he entire proven marital estate has a value of slightly more than $500,000.00. When [the w]ife was" awarded the [marital home] an automobile,’ and a portion of the household goods she had been awarded practically all of the marital estate. To award her more than she has already been awarded in the form of $100,000.00 as alimony in gross would be an inequitable division of marital property -in addition to being an award that exceeds the marital estate.”

In its January 5, 2016, judgment, the trial court had ordered the husband to pay the wife one-half of a certain retirement account. That provision was modified by the trial court’s March 28, 2016, order, and the husband was awarded- “full right and title to” his retirement accounts. In its-March 28, 2016, order the trial court also stated that “[the h]usband’s individual or business accounts ... are confirmed in [the h]us-band’s name as his sole and separate property and [the w]ife is divested of any interest she may have therein.”

However, the record indicates that the husband had deposited at least some revenue received by 20th Century Hound into his accounts for his sole benefit during the marriage. We -note the following exchange that took place between the- husband and the wife’s attorney regarding some of those transactions:

“Q. Now, is this the account that receives most of the time payments from the publishing companies for your work?
“A. I believe so.
“Q. And from this account when it receives money you have the power to direct where the money goes given normal regular business practices and capabilities; isn’t that correct? •
“A. Yes, sir.
it
“Q. And in November 2014 from Sanford Bernstein what were the opening and closing balances? '
“A. Opening balance [$41,823]. Closing balance [$0], I am sorry. [$91,912].
“Q. And what do you attribute the- increase in that month?, , -
“A. Probably the [$50,000]- for the completed accepted manuscript,
“Q. For a book you. are writing or participating in?
“A. Yes, sir.
“Q. And the next month, December 31, "2014 shows the opening balance [$91,-912] and then closing balance [$43,250]. Do you see that?
“A. Yes, sir.
((
“Q. ... And within the month of December there was a [$16,250] deposit to the retirement account for you. And [$32,-433] to an investment account for you in your name?
“A. Yes, sir.”

In other words, the husband’s testimony would support the conclusion that most, if not all, of the revenue that he had -generated by completing various writing projects during the marriage had been deposited into a business account over which he exercised complete control and through which he at least occasionally'directed investments for his sole benefit. As noted above, the combined balance of the-husband’s investment and retirement accounts as of October 13, 2015, was $1,231,873.

The record indicates that the husband possessed two retirement accounts, only one of which had been created during the marriage. The balance of that account on February 27, 2015, was $146,333 and had decreased during the pendency of the divorce action to. $137,949 on October 13, 2015. Furthermore, the husband offered as evidence a “cash flow summary” of his largest investment account that had been created in 1984. The “cash flow summary” indicated that the husband had contributed a net amount of $58,351 to that account during the marriage. Thus, the trial court could have concluded that the total value of the contributions that the husband had made to his retirement and investment accounts with income that' had been produced during the marriage was approximately $203,684 in February 2015.

Taking the husband’s valuation of the marital estate of approximately $500,000 to bé accurate, and taking into consideration the $220,000 that the wife testified that she had received in April 2015, the record indicates that the trial court could have concluded that the total value of the wife’s estate after its award of $100,000 as alimony in gross would be $820,000. As compared with the $1,231,873 combined balance of the husband’s investment and retirement accounts, the trial court could have determined that awarding the wife the marital home and $100,000 as alimony in gross would be equitable.

Alternatively, the trial court could have determined that $1,200,000 represented the total value of the substantial property the parties had acquired during the marriage and therefore concluded that awarding the wife $100,000 as alimony in gross in addition to the marital home, which had been valued at $500,000, would be both equal and equitable. As explained above, the husband testified that he had earned approximately $700,00.0 during the marriage for the completion of major writing projects, and when asked, “[W]as that money you were living off during 2009 to 2012?,” the husband responded, “For the most part, yes, sir,” However, the extent to which the husband had actually paid the parties’ living expenses during the marriage was disputed. For instance, we note the following testimony from wife regarding the parties’ monthly expenses:

“[The wife’s attorney]: While we were [ (sic) ] are on the subject of money, how were bills paid? What was the normal routine regarding handling of the money during the marriage?
“[The wife]: I think the writing of the monthly bills, the utilities and the insurance and car insurance, home insurance was paid in a lump sum once a year and [the husband] handled that. I believe it came from his father.”

The trial court could have further concluded that the husband’s own testimony corroborated the wife’s testimony regarding his father’s payment of their living expenses. As already mentioned, copies of the husband’s credit-card statements for 2012, 2013, and 2014 were admitted into evidence, and the annual totals of those expenses were $51,500(61, $83,949.74, and $214,821.23, respectively. Regarding his credit-card usage, the husband testified as follows' upon cross-examination by the wife’s attorney:

“[The wife’s attorney]: And who paid the bill for your usage of this credit card?
“[The husband]: My father.
“[The wife’s attorney]: And have you paid him back anything for that?
“[The husband]: Not yet.”

In other words, although the husband testified that the $700,000 sum that he had earned during the parties’ marriage had “for the most .part” been used to pay the family’s living expenses, the trial court could have determined that the husband’s father had actually historically borne much of that financial burden, thereby allowing the husband to substantially dispose of the $700,000 sum in any manner that he saw fit, including in a manner from which he would reap the sole benefit after the parties were divorced. In addition to the testimony referenced above regarding the husband’s contributions to certain private accounts, we note the following exchange that took place between the wife’s attorney and the husband specifically regarding certain installments of the $700,000 that he-had received:

“[The wife’s attorney]: Isn’t it true that you got [$170,000] ’at the time of signing?
“[The husband]: Probably so, yes, sir.
“[The wife’s attorney]: And when you got the [$170,000] what did you do with it, if you recall?
“[The husband]: I deposited it into my equity accounts,
“[The wife’s attorney]: So that was money earned during your marriage that went into your Alliance Bernstein account that you call the equities account?
“[The husband]: Yes, sir.
it
“[The wife’s attorney]: And when you receive the next payment of the [$100,-000] less whatever' the publisher took out for agents or whatever, what did you do with the money?
“[The husband]: It was deposited in the same account.
“[The wife’s attorney]: The equities account?
“[The husband]: The account 20 Century Hound, LLC, d/b/a at Alliance Bernstein.
“[The husband]: Equities account is my umbrella term for my Alliance Bernstein account.
“[The wife’s attorney]: So you are calling all of your accounts at Alliance Bernstein your equities accounts?
“[The husband]: Yes, sir.
“[The wife’s attorney]: And if I have got it clear when you receive money you say it goes into an account under the name of 20th Century Hound?
“[The husband]: Yes.
“[The wife’s attorney]: And from that account it goes to other places for use to whatever you wish to apply it to, paying expenses or investing or whatever?
“[The husband]: Yes, sir.”

(Emphasis added.)

We note that the ultimate disposition of the entire $700,000 the husband had received is not expressly disclosed in the record. However, it was undisputed that he had received the $700,000 and that he had decided the purpose to which it was put. Thus, the trial court could have concluded that, through their joint efforts, the parties had acquired substantial property during their marriage totaling approximately $1,200,000 and therefore determined that awarding the wife the marital home, valued at approximately $500,000, and requiring the husband to pay an additional $100,000 as alimony in gross would both equally and equitably divide the marital property by awarding the wife one-half of the value of the substantial property that the parties had acquired during the marriage.

Citing Culver v. Culver, 199 So.3d 772, 779 (Ala. Civ. App. 2016), the dissent concludes that, “although the husband has a sizeable separate estate, that fact does not give the trial court discretion to award him an inequitable portion of the marital property.” 225 So.3d at 642. We agree. However, the record supports our conclusion that the trial court did not base its decision to award the $100,000 to the wife solely on the size of the husband’s separate estate but, rather, on all the evidence presented, including the evidence regarding the substantial property that the parties had acquired during their marriage, the husband’s testimony regarding his ability and willingness to dispose of significant portions of that property for his own benefit, and the evidence presented regarding the husband’s ability to prevent the wife from using or accessing that property during their marriage, at least in part due to the financial support provided by his father.

The parties’ actions toward one another and the events leading to their divorce were disputed. The wife testified that she had obtained a master’s degree in film production in 1995 but had been unemployed during the marriage. The husband was a successful author who was working on another project at the time of trial. Based on the parties’ earning abilities and the disparate value of their respective assets, we cannot conclude that the trial court’s determination that an award of $100,000 to the wife as alimony in gross would serve equity was so unsupported by the record such that it is plainly and palpably wrong and its judgment should be reversed.

Furthermore, a variety of inferences can be drawn from the record, and the evidence presented is subject to multiple interpretations. However, as is ably demonstrated by the facts of this case, interpreting the evidence and making inferences based on the evidence rightfully fall within the scope of the duties that the trial court has been obligated to perform by § 30-2-51, Ala. Code 1975, and this court is in no position to substitute its judgment for the trial court’s resolution of such factual issues unless its determinations are clearly incorrect. Because we conclude that the husband has not demonstrated such error here, we decline the opportunity to reverse its judgment in this case. See Clements v. Clements, 990 So.2d 383, 392 (Ala. Civ. App. 2007)(“This court cannot hold that the trial court’s award of alimony and the division of the marital property was plainly or palpably wrong, because there was evidence in the record from which the trial court could have reasonably determined that the alimony and division of marital property was equitable under the circumstances of this case.”). Accordingly, the trial court’s judgment is affirmed.

AFFIRMED.

Thompson, P.J., and Pittman and Donaldson, JJ., concur.

Moore, J., concurs in part and dissents in part, with writing.

MOORE, Judge,

concurring in part and dissenting in part.

Keith Joel Thomson (“the husband”) appeals from an amended judgment entered by the Jefferson Circuit Court (“the trial court”) divorcing him from Karen Acton Shepard (“the wife”). The husband first argues that the trial court lacked jurisdiction to enter the amended divorce judgment. I agree with the main opinion’s holding that, pursuant to Henderson v. Koveleski, 717 So.2d 803, 806 (Ala. Civ. App. 1998), the trial court had jurisdiction to enter the amended divorce judgment.

The husband also argues that the trial court erred in ordering the parties to pay a fee to the guardian ad litem and in its child-support award. The main opinion affirms with regard to those issues, and I concur in the affirmance.

The husband’s final argument is that the trial court’s award of $100,000 in alimony in gross to the wife renders the property division inequitable and that there is no marital property from which the husband can satisfy that award. “‘[A] division of marital property in a divorce case does not have to be equal, only equitable, and a determination of what is equitable rests within the sound discretion of the trial court.’” Underwood v. Underwood, 100 So.3d 1115, 1116 (Ala. Civ. App. 2012) (quoting Langley v. Langley, 895 So.2d 971, 973 (Ala. Civ. App. 2003)).

In its amended divorce judgment, the trial court awarded each party an automobile and various personal property. The trial court awarded the wife the marital home, which was free and clear from any debt and which the husband valued at $500,000. The trial court awarded the husband two individual retirement accounts. The evidence indicates that one individual retirement account (“IRA”) was created during the parties’ marriage and that the parties were married more than 10 years; therefore, that IRA is marital property, and its value at the time of the trial was $137,949.. The other IRA was created before the parties’ marriage, and the parties agree that that IRA is the husband’s separate property.

The trial court specifically found that the husband’s investment account, which had a balance of over $900,000 at the time of the trial, was his separate property and awarded the husband that account. The wife did not file a cross-appeal; therefore, although the main opinion notes that there was evidence indicating that $58,351 of the balance of that account had been contributed to the investment account during the parties’ marriage, the trial court’s determination that the husband’s investment account was his separate property stands. See, e.g., McMillan, Ltd. v. Warrior Drilling & Eng’g Co., 512 So.2d 14, 24 (Ala. 1986) (“In the absence of taking an appeal, an appellee may not cross-assign as error any rulings of the trial court adverse to appellee.”). I note that the evidence also indicated that, as of April 2015 (after the complaint for divorce was filed), the wife had obtained unrestricted access to $220,000 from a trust fund that was created by the wife’s parents; pursuant to Ala. Code 1975, § 30-2-51, those funds are the wife’s separate property.

Considering the marital property for which a value was listed, I conclude that the wife was awarded $600,000 ($100,000 in alimony in gross + $500,000 (value of marital home)), and the husband was awarded $37,949 ($137,949 (value of IRA) - $100,000 (alimony in gross .awarded to the wife)), This. resulted in the wife being awarded 94% of the marital property and the husband being awarded 6% of the marital property. “[T]he fact that a spouse has a separate estate does not negate the requirement that marital property is to be divided equitably between the parties.” Culver v. Culver, 199 So.3d 772, 779 (Ala. Civ. App. 2016). In the present case, although the husband has a sizeable separate estate, that fact does not give the trial court discretion to award him an inequitable portion of the marital property. Because the trial court’s division of marital property was inequitable, I would reverse the trial court’s amended divorce judgment on that point.

      . The husband also cites State ex rel. Thomas v. Thomas, 575 So.2d 583, 587 (Ala. Civ. App. 1991), and contends that the trial court’s judgment should be reversed because the record does not contain a Form CS-42. However, this court has held that, where the record indicates that an award of child support comports with the evidence regarding the parties' incomes, we need not reverse a child-support order based solely on an absence of the forms outlined in Rule 32(E). See Barrett v. Barrett, 183 So.3d 971, 976 (Ala. Civ. App. 2015). As is further discussed below, the trial court’s child-support award was supported by sufficient evidence. Therefore, the absence of a Form CS-42 from the record does not constitute reversible error.

      . At its uppermost level, Rule 32 provides for a child-súpport award of $2,140 for two children.

      . 20th Century Hound’s Form 1120S for 2014 was admitted into evidence and indicated that it had received gross income of $102,178 and reported net income of $2,891 for that period. We note that the parties have not specifically cited, nor have they meaningfully addressed the effect, if any, of Rule 32(B)(3), Ala. R. Jud. Admin., on the proper calculation of the husband’s gross income. See Hurley v. Hurley, 980 So.2d 985, 988 (Ala. Civ. App. 2007)(“When a party’s income is from self-employment, ‘the relevant income is [the business’s] net income, not the [party’s] draw or salary,’ ” (quoting Brown v. Brown, 960 So.2d 712, 716 (Ala. Civ. App. 2006))). Thus, we decline- to reverse the trial court’s judgment on the basis of the instruction set forth in Rule 32(B)(3), See Asam, supra.

      . The husband also cites Van Houten v. Van Houten, 895 So.2d 982, 986 (Ala. Civ. App. 2004), and argues that the trial court should have imputed income to the wife because she was voluntarily unemployed. There is no indication, however, that the trial court found the wife to be voluntarily unemployed. "[T]he determination of whether a parent ... is voluntarily underemployed or unemployed is discretionary with the trial court.” Id. at 986-87. Furthermore, based on the record before this court, we cannot definitively say that the trial court did not consider the wife’s resources or earning ability when setting the child-support award. As noted above, the wife testified that the family's monthly expenses .could at least occasionally cost as much as $5,000, but the trial court's award of $3,000 a month in child support represented the smallest figure noted by the wife. Thus, the record does not clearly demonstrate that the trial court improperly evaluated the wife’s resources or earning ability such that its judgment should be reversed on that basis.

      5. The husband’s father had purchased with cash á separate house in which the husband had been living during the pendency of the divorce action. The husband testified that he was paying rent of $2,500 per month to his father.